CharliD

Hello All - What are my attorney's saying? They are saying our ability to recover for damages is very limited. And due to other extenuating circumstances within this region of the VA I really cannot give any more information. Suffice it to say that "its complicated." And yes, I am in regular communication with our OGC. I had always thought of FAR 52.236-9 as a "during construction kind of application," but in reading it I may need to be more creative in my thought process.

Thank you all for your responses. Both FAR 52.246-12 and FAR 52.246-21 are in the contract and as you note there is not much there. The latent defect may come into play; however, there will still be no way to recover full costs incurred. Also, I'll read the case referenced by C Culham. This situation just came to light, but once I know outcomes we will certainly post an amendment to their CPARS report. FAR 32.601(b)(11) should be applicable here. It does not look like it will extend beyond materials and direct labor; however.

The contract does not address actual damages resulting from the contractor's work when those damages are incurred after final acceptance. I have also submitted this to VA legal counsel, but thought I would see what I could find here as well. And, because the CPARS was already completed, then no, it does not address this problem.

The VA has experienced a couple of warranty issues and a power outage that are the direct result of the contractor’s work. Construction was completed and the VA had taken beneficial occupancy and given final acceptance of the building. Since that time the VA has experienced several warranty issues; two of which have caused significant additional cost to the facility. Split Fittings: Fittings installed on water lines to sinks began failing almost immediately after beneficial occupancy and there have been multiple failures since then. Over time (6 months or so) the VA was able to convince the contractor to replace all of the fittings. This work is only recently completed and the success of the new fittings is still unknown. The local facility did have to cancel several patient appointments. Complete Power Outage: The VA campus where the building in question is located experienced a complete power outage. This outage impacted the surrounding neighborhood. It took approximately 1.5 hours to make repairs and to obtain clearance from the local utility company to restore power to the campus. The subcontractor was called out to trouble shoot and make the repairs. They discovered that the transformer was tied-in incorrectly, which caused a major power surge, blowing fuses all over the campus, damaging a compressor and a door controller. This also caused cancellation of patient appointments. Rightfully so, the facility would like to recover actual damages incurred and is looking for direction. Once they know what costs can be recovered they will assemble the data. What costs can be recovered? Materials. Is the cost of the replacement items – fuses, compressor, door controller, etc. – recoverable? Lost Patient Appointments? HQ reimburses local facilities for each patient appointment. The amount per appointment varies depending on the type of appointment. The loss of these appointments directly impacts the revenue the facility will receive. Can the facility recover the cost of these appointments? Normal Duty Hours – Labor Expended. Several VA employees were pulled off of their normal duties to attend to this outage. Is the cost of these labor hours recoverable? Overtime Labor Hours. VA employees worked several hours of overtime on two different days directly on the task of recovering from the outage. Is the cost of these OT hours recoverable? Overhead (OH). The Deputy Director and the Emergency Preparedness Official both worked about a day and a half on the recovery efforts from this outage. While the facility understands it cannot be compensated for lost reputation, can it be compensated for the OH expended due to this outage? Utility Company Costs. In the event the utility company decides to back charge the VA for expenses incurred due to this outage, can the VA recover these costs as well? Once the facility compiles all of this information, how do we go about recovering these costs from the contractor?

Mr. Edwards asks a good question, "Third, why are you talking about "descope" instead of partial termination for convenience?" Recently, the VA awarded a construction contract which included the base item(s) and option item 2. Now that construction is underway, the VA has determined it really cannot afford option item 2 and wants to remove it from the contract. Of course, there is a small portion of option item 2 SOW that must still be performed, so it is not a completely clean de-scoping mod. The contract specialist asked me if this is a "reduction in scope" under the Changes clause or a partial termination for convenience. My recommendation was to process a T4C. A different CO recommended processing it under the Changes clause as it is a bilateral change, it is more palatable to the contractor and not such a heavy handed approach. In my mind, a T4C is bilateral in that the final agreement is signed by both parties. And a T4C is not a negative to the contractor. Further, if there is any idea it might be, this can be laid to rest in CPARS. I've personally not found a good analysis of when or if one should proceed with a reduction in scope under the Changes clause or a partial termination for convenience. I'd be interested in finding a good analysis of this and/or hearing people's thoughts on the matter.

This has been an interesting discussion. The most embarrassing part is that I'm not really new to this field, yet based on my previous experience I had become confused about this stuff. Annoying. Regardless, I hope that for truly novice contract types, this discussion has provided some useful insight, rationale and suggestions. After referring her to this string, as well as Vern and C Culhams recommended readings, I am recommending the following to my boss. We should seriously re-vamp our solicitation and response evaluation procedures in the MATOC. In fact, maybe we want to resolicit the base IDIQs and allow the current ones to expire. We should get rid of all references to FAR Parts 13, 14 and 15 and all terminology such as RFQ, quote, quotation, sealed bid, bidder, IFB, RFP, etc. We should use terms like solicitation (while I hear/understand ji20874's position, contractors understand the term solicitation much better), response and contractor. We should also state that responses will be evaluated to determine which ones are most advantageous to the Government. That negotiations, if held, will be at the sole discretion of the government and may or may not be held with all contractors that respond to the solicitation.

Maybe the answer lies in even attempting to apply solicitation procedures of FAR Parts 13, 14 or 15 to the procedures of Part 16. Maybe I'm just borrowing trouble, but if there is an issue it will be FAR Parts 13, 14 or 15 that provide guidance.

WOW! So my question stems from the practice of competing procurements (specifically construction) among multiple IDIQ contract holders and the instructions tell the contractors that the government will be following the solicitation procedures of FAR Part 13, 14 or 15. In my experience this has been typical. But if we do this, doesn't the type of solicitation procedures being followed and the response received affect whether or not that response is legally binding? And I just think (again, maybe over thinking) that the agency where I currently work is making the water very muddy by not being clear or consistent. I do understand that the difference between a "notice of intent" to do something versus a solicitation for responses and the FAR 16.505 does not specifically require a solicitation, but I really do not know of any other viable way to receive responses that can be effectively evaluated for an award - in the construction world. Further, by issuing a solicitation we are not only obtaining competition, but are also satisfying fair opportunity.

This is applicable to solicitation responses under IDIQ contracts. Most specifically MATOCs for construction services. I thought I knew this stuff until a supervisor wanted to issued RFQs under MATOCs because it was easier and more streamlined. I know that is the guidance, but how far does one take that? Maybe I am overthinking this, but I think a few factors need considered. Here is my thought process and rationale. 1. FAR Part 2 does not define Requests for Quotes (RFQ), specifically. 2. FAR Part 2 does define "solicitation." ""Solicitation" means any request to submit offers or quotations to the Government. Solicitations under sealed bid procedures are called "invitations for bids." Solicitations under negotiated procedures are called "requests for proposals. Solicitations under simplified acquisition procedures may require submission of either a quotation or an offer."" 3. Simplified Acquisition Procedures are detailed in FAR Part 13. IAW FAR 13.004(a), a quotation is not an offer and cannot be accepted by the Government to form a binding contract (thus the order issued is an offer and the contractor accepts by commencing performance giving constructive acceptance). 4. Based on the definition of "solicitation" at FAR Part 2, can an RFP be issued under FAR Part 13 when an offer is desired rather than a quote? And can the Government accept the offer received to form a binding contract? Or is constructive acceptance required? 5. Does FAR Part 13 offer advice on when to use an RFQ vs. an RFP (I cannot find it)? 6. Since a certain amount of negotiation can happen under FAR Part 13, would use of an RFP only be appropriate when using evaluation factor other than price or price-related (FAR Part 15)? 7. Do thresholds play into the type of solicitation issued under an IDIQ contract? 8. Does the mere existence of an IDIQ contract automatically move the orders into the simplified acquisition arena? 9. FAR 16.505 paren b addresses placement procedures and does not address solicitation procedures, specifically. Is this semantics? 10. When an IDIQ contract is in place, can an RFQ be issued for projects exceeding the SAT (construction, non-commercial item)? And can the quote submitted be used for form a binding contract? Or is constructive acceptance required? My opinion (prove me wrong via holes in my rationale/interpretation or regulation and case law): 1. Yes, an RFP can be issued under FAR Part 13, pulling in the applicable portions of FAR Part 15. 2. An RFP under FAR Part 13 should only be used if the Government wishes to incorporate evaluation factors other than price and price-related. 3. If the Government issues an RFP under FAR Part 13, then yes, the offer received can be used to form a binding contract and constructive acceptance is not required. 4. Yes, thresholds do have an impact on the type of solicitation issued under an IDIQ contract and the type of response received - legally binding or not (quote vs. bid/proposal) and negotiable or not (bid vs. quote/proposal). 5. The mere existence of an IDIQ contract does not automatically move the orders placed under it into the simplified acquisition arena. 6. An RFQ should not be used under an IDIQ contract if the Government wishes to receive legally binding responses (bids/proposals). 7. Just because the IDIQ includes a provision that required the contractors to provide a response (including "no bid" responses), that does not make the response binding of that response is a quote as requested by the solicitation (RFQ).

It is correct that I do not work for DOD. I am with the Department of Veterans Affairs (VA). I did work for USACE for 15 years (left in 2006), but do not recall this being an issue. The VA's clauses and specs do not address float - or at least not in this contract. Thank you for all of your replies and insight. I can see that I have much more research / learning to do.

In a fixed price construction contract procured via FAR Part 15 procedures, who owns the float in the schedule? The contractor's schedule submitted after award and accepted by the government showed an early completion date for the work. The contractor maintains that they own the float in the schedule, meaning that time between their planned completion date and the completion date of the contract. A little internet research tells me that the commercial market place has three schools of thought: 1. The contractor owns the flow; 2. the owner owns the float; and 3. the project owns the float. I did not readily find a discussion of float on federal contracts, but my guess is that the owner (government) owns the float and that the contract completion date or period of performance (POP) would not be extended until the critical path of the accepted schedule exceeds the contract completion data or POP, provided the delay is an excusable delay or the government-requested changes impact the critical path. If anyone has experience with this or thoughts on the matter, please share.