TC2012

I believe that you are required by FAR to prepare a single justification in your described case. My situation was different. I don't believe you need a single source J&A to include in a construction specification the brand name of the system manufacturer who's existimg system is currently installed that must be expanded to meet the government's current requirement. On the other hand, if you are introducing a new product into a construction contract by brand name, then you would need to create a J&A to justify why that brand is the only brand that will meet the government's requirements Good luck.

Thanks Joel, totally agree.

Retredfed The installers qualification was placed in the specification to cover our backside. You would assume that anyone bidding to expand a security system would be qualified or they would not bid. Oh, but that is incorrect, as contractors do it everyday and then the GC is stuck with a contractor who is incapable of performing the required work. The specification is intended to ensure that the bidder understands you must be qualified to perform these services. The consequences is that the GC remains liable for completing the work and it may cost the GC more money than it had in the bid to obtain a qualified subcontractor to perform the work,

The existing security system is a mandated qualified system for the type of Air Force facility undergoing expansion. The specification provided the brand name of this existing system and then provided detailed performance UFGS performance specification that was carefully drafted by the military for these systems, As you might be aware the drawings and connections required for this type of system are not posted on the internet and most probably closely held by the manufacturer. With that being said, it remains the responsibility of the subcontractor bidding the expansion of this system to be qualified and capable of gaining access to the required connection necessary to expand the existing system. If a subcontractor, who is made aware of the existing systems brand and understand the meaning of the project facility title, a prudent subcontractor would have reasonably contacted the OEM to determine if it could gain access to the information necessary to expand the system. Best of luck with your future endeavors as a new attorney. Contract law is a very interesting subject. Perhaps sometime more lucrative working against the government than for the government.

Joel, The issue remains in the discussion phase and has not developed into a certified claim. Yes, lawyers are available, but the contractor has not yet turned this into a claim. I believe it maybe somewhat premature to involve them at this stage in the discussion. Lawyers want the complete picture and we have yet to get the contractors final decision to proceed with the work as specified or fight through a claim. We hope to convince the GC that is arguments are flawed and if it choose to file a claim, it would be rejected unless some other information presented itself. You are singing the same song as I am with your 2nd and 3rd paragraphs. I completely agree with what you are saying. We will soon see how this comes out. The KO has advised the contractor that all delays related to these discussion are his responsibility and that he needs to obtain the services of a qualified and competent subcontractor to perform the work required by the specification. By the way the specification being used for the security system is a standard DoD Unified Facility Guide Specification (UFGS) written and coordinated between all services of the US Military. So it is not something the A/E just came up with. Joel, thanks for your input as we are in total agreement on the issues and approach to resolving this issue prior to formal claim actions. Not in the governments or contractors best interest to get into a protracted dispute or claim over this issue. GC make a mistake by accepting and unqualified subcontractor bid and the government cannot bail him out. Thanks!

I am standing for the proposition the this is the contractor's problem to solve within the contract as written. The bidder should have verified that it was fully capable of expanding the existing brand name system prior to submitting its bid to the GC .

Vern, I completely agree, it does not make sense. However, this is the basis of the GC arguments. The government should have told in its single source justification required by FAR, that this brand name manufacturer has proprietary rights to all of the designs, components and drawings concerning its security system and they are the only ones who may modify it, unless you are able to get this information from them. Just because the government purchased and installed a brand name system does not give it the rights to the detailed technical information of the system. Information that would be required to expand the existing system. Further, if the government would have presented a sole source justification what would it have said? I assume the justification would indicate the brand name of the existing security system and indicate that the contractor must be qualified to expand this system. Further, must be capable of obtaining access to the systems proprietary wiring information. The security system was not manufactured exclusively for the government, it is a commercial item. Since the government requires expansion of the system, a contractor must first determine if you can obtain access to the necessary proprietary technical data required to expand this brand of security system. However, should that not have been obvious to any contractor with any knowledge of commercially produced alarm system. Manufacture routinely hold the data rights. Especially these wiring and data are not made available to the general public or to other contractors because they are proprietary to the system manufacturer and if distributed outside of their company, it would create a risk to the classified information they were designed to protect. This is not a security system for a home. This system was designed to protect a classified military facility. You would not want a potential terrorist to have access to the security system drawings. Any contractor working with these types of security systems for a classified facility should have automatically known that this would have proprietary data concerning the systems wiring would not be available to the general public or on the internet.

Vern, How about this statement: WARNING: If you don't have the necessary experience and knowledge to expand the existing OEM system, request that you not submit a bid. Because if you submit a bid, and you don't have the expertise and technical ability, the general contractor will still be subject to providing the contractor that is capable to complete the required expansion under the contract, at no addition cost to the government.

Only example I can readily think of is when an existing brand name system needs to be expanded or modified. Existing facilities are being altered and existing systems in those facilities are being modified all of the time under construction projects. . i.e. heating, cooling, etc. -- usually these types of system have multiple sources who can perform the required modifications. On the other hand, when you have a highly technical system, only the OEM knows the combination or has the technical knowledge and ability to change or expand the existing system. Most contractors who normally work with these types of system clearly understand that the OEM is the only one who knows how to expand the system, because they own the design and data rights to the commercial system. For example: my car's low pressure tire light will remain on until I take it back to the dealer who sold the car and he had a box which talks to the pressure sensors on the rim which tells the sensor everything is OK. Only the OEM has the magic box to do this. When a bidder submits a bid to modify a technical system, would you not expect it to initially determine if they had the expertise and/or qualifications necessary to perform work specified and to the existing system identified as the "existing system". It does not make sense to justify why the government placed the name of the OEM in the specification. The bidding contractor needs this information in order to make the determination if they are qualified to alter the existing system. If I do not have the necessary proprietary information to design and expand an existing security system, then perhaps that is an indication that I should not bid on this work. Does the government need to explain this to any competent contractor? Also, the government has no direct control over the brand of the existing system. We have what we have.

Thanks Joel, and I agree with you. The subcontractor is qualified security systems, but not this brand of security system because it does not have the proprietary wiring information for the existing system and the government does not own that information. The system is a commercial item and the government does not own the data rights to the systems design as the system was not designed specifically for our application. Thanks again for all your input.

I think perhaps the key to this issue may be found in FAR 52.236-5 -- Material and Workmanship. In a construction contract a brand name may be inserted provided it also provides the required salient features or performance requirements of an acceptable system. The inclusion of the existing brand name security system without a single source justification set a standard of the existing system quality and advises potential bidders of the brand name of the existing security system. The specifications did not specifically indicate that the brand name was the only product that could possibly be used. Rather, the specs indicated that was the brand of the existing system and provided performance criteria for the expansion of the existing security system. Bidders had the latitude of installing a complete replacement security system, provided the system complies with the required performance criteria. I am certain the cost to replace the entire security system far exceeded the cost to expand the existing system. (a) All equipment, material, and articles incorporated into the work covered by this contract shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this contract. References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of the Contracting Officer, is equal to that named in the specifications, unless otherwise specifically provided in this contract. ( b ) The Contractor shall obtain the Contracting Officer’s approval of the machinery and mechanical and other equipment to be incorporated into the work. When requesting approval, the Contractor shall furnish to the Contracting Officer the name of the manufacturer, the model number, and other information concerning the performance, capacity, nature, and rating of the machinery and mechanical and other equipment. When required by this contract or by the Contracting Officer, the Contractor shall also obtain the Contracting Officer’s approval of the material or articles which the Contractor contemplates incorporating into the work. When requesting approval, the Contractor shall provide full information concerning the material or articles. When directed to do so, the Contractor shall submit samples for approval at the Contractor’s expense, with all shipping charges prepaid. Machinery, equipment, material, and articles that do not have the required approval shall be installed or used at the risk of subsequent rejection. ( c ) All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable. (End of Clause)

Joel, yes this was an IFB and the bid was lump sum. The security system was included in the lump sum bid and a separate price breakdown was not requested. The government would not have any idea of what firms were bidding on the security system. This was a subcontractor who bid to an electrical subcontractor.

Everything above is correct. I feel the contractor is trying to cover itself with the excuse that the government did not issue a sole source justification and therefore, we are off the hook to provide what the specifications require. I was a Contracting Officer on construction contracts for over 25 years and I am aware how GC's attempt top cover their backside when they screwed up and find out they have a bad bid price from a subcontractor. I don't see a tie between the sole source justification and subsequent compliance with a non-defective specification after contract award. It is my opinion that if the contractor did not protest the sole source issue within 10 days after award, it becomes a dead issue and the GC is required to comply with the specifications.

Joel, I agree the A/E should have advised the KO. However, we must first find an A/E who knows enough or should have been advised by KO to provide notification of a single source installer. Equally, referencing FAR 52.236-3 The contractor by submitting its bid acknowledges that it has taken steps reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost, including but not limited to (1) conditions bearing upon transportation, disposal, handling, and storage of materials; (2) the availability of labor, water, electric power, and roads;(3) uncertainties of weather, river stages, tides, or similar physical conditions at the site; (4) the conformation and conditions of the ground; and (5) the character of equipment and facilities needed preliminary to and during work performance. Further, the Contractor also acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the Government, as well as from the drawings and specifications made a part of this contract. Any failure of the Contractor to take the actions described and acknowledged in this paragraph will not relieve the Contractor from responsibility for estimating properly the difficulty and cost of successfully performing the work, or for proceeding to successfully perform the work without additional expense to the Government. Thanks for your input.

Fixed, thanks. It makes it hard to follow. My bad.