PD216ohio

47 minutes ago, here_2_help said:

I would expect you to insist on recovering your full costs of performance. Nothing less.

So there is no disincentive for the government to just completely ignore a contract and let the POP expire?

I had been awarded a contract where the POP was one year.  It was a simple project.  However, the installation at which the work was to be performed seemed to have huge issues with communication between departments.  We were instructed to arrive on a certain date to begin work.  Things were immediately halted due to a base wide stop-work order due to another contractor on an unrelated project.  We were instructed to stick around until it was lifted, which took 4 days and then it was halted again because the government had to move equipment into our area of work for maintenance.  We were then instructed to pull out and to schedule a return.

After months of attempting to return, we were met with lengthy delays in communication, a host of alternate proposed scenarios and ultimately left without any direction on when to return.  The area of work is in a highly controlled access area.

The POP expired and the personnel in charge are no longer at the base or in the same departments they were previously.

We have submitted an REA and were offered substantially less than requested.  We did request more than the original contract amount due to the expenditures made and time on site, as well as the incredible amount of time spent communicating with regard to this project.

The amount offered from the government was substantially less than the contract amount and obviously less than the REA requested.

Should we expect a minimum offer of the contract value for breach?  It was a mid 30k dollar amount, if that matters.

22 hours ago, joel hoffman said:

You didn’t say what the contract was for.. construction, service, etc. Or what, if any, clauses are in your small contract.

See this link. It might or might not be applicable: https://www.oles.com/blog/far-suspension-of-work-v-stop-work-order-what-contractors-need-to-know/

Sorry, it was a construction service contract to dismantle structures.

On 10/2/2020 at 4:22 PM, Neil Roberts said:

 

This is what I would do:

1. Submit a voucher for $35k less any amount you may have already been paid.

2. Wait 30 calender days and if not paid, submit a written demand to the contracting officer for that amount for reasons of breach of contract and request a decision within 60 calendar days.

3. If no decision issued within that time, file an appeal with the Armed Services Board of Contract Appeals if the contract is Department of Defense or NASA.

4. Alternatively, consult with an attorney experienced with contract disputes with the government, preferably with the agency involved (you didn't say).

Thank you for that insight/advice.  Do I have a claim for the entire contract value simply because the government breached?

I also have a pending claim for 21k for the week I spent on site, and which was consumed with the stop work order.  I would have considered that wasted time to be billed in addition to the contract value since I was there on a date specified by the government and then accomplished nothing but was on standby at the orders of the government.

Honestly, I was just going to bill them for that lost week and some time for prep work, office hours, etc.  So maybe 30k total max.

Further, I am not certain that I want to complete the contract (if given the option) given all the difficulties presented at this particular installation.

As for an attorney, I think the cost for someone familiar with this area of law would cost more than the value of my claim.

52.233-3 NS 52.233-4 are cited, but not 52.233-1.

Further, that clause seems to relate more so to claims arising during the course of a project (unforeseen work, etc), although I guess this technically qualifies as such. But I am more concerned with how this "ends" since the POP is long expired and the government remains unresponsive. None of the project was physically completed.

I did find this decision, which seems relevant to some extent: Relyant, LLC, ASBCA No. 59809 (2018) Wherein the government's delay constituted a breach of contract.

I was awarded a relatively small contract, under 35k. It had an unusually long POP of 1 year.

I went through all of the trouble to get security clearances for employees, traveled to the site (out of state) to begin work on a date the CO selected as most advantageous to him (although not the best for us but I like to be helpful and cooperative). We were immediately notified that a stop work order was in place for an accident elsewhere at the facility. We were advised to stick around in hopes the order would be lifted soon.  Our arrival date on site was a Monday, the stop work order was lifted on the following Thursday morning. A few hours later on that Thursday we were told to stop work again because other work had to be performed in our work area. I was then told to pack up and that we would reschedule for a later time.  We had 7 months remaining.  I spent that Friday having equipment picked up, situating things and headed back home the next day.

Over the next 7 months, getting any responses from the gov was horrible.  typically one response would take over a month.  The last response or contact was 5 months ago and the POP expired 3 months ago. In previous conversations by phone (which I hate since I like everything documented in email) the CO told me that he thought his boss was intentionally trying to let the POP expire in order to wrap this project into something else. This project is at a highly secured area so I can't just pop in and restart work.

My lost week and other time and expenses are about equivalent to the project value, even though we literally completed 0% of the physical work.

The government has been wholly unresponsive.  

What do I do?

On 4/29/2020 at 2:15 PM, ji20874 said:

Were you the low bidder?

No idea since the solicitation was cancelled after bids were received.

I did find out that they rewrote the specs and awarded to a sole source.... and again, let me reiterate, that the new approach followed my analysis and detailed proposal.

15 hours ago, C Culham said:

You have two views expressed which leads me to my thoughts.   It sounds like you might be a usual "supplier" to the agency if so you might consider the simple but upfront approach.  It may stand to offend or it might yield some type of positive resolution for you.   In other words contact the CO and ask what happened to the solicitation and ask about the solution they used as it might open the door to further conversation.  Or it might not.  You know the terrain better than us to consider whether my thoughts would be a good idea.

For the future there are ways to protect yourself that might give you leverage.  Possibly place a "copyright all rights reserved" on a proposal or "confidential" on those parts of your proposal you feel fall into a unique idea (trade secret?).   The Freedom of Information Act provides some protections as well.  In the end no matter the effort you take if it is not a "one off" experience on your part and you really want to protect yourself for the future you can find much more detail on the subject by doing an internet search on something like "Protecting the proprietary of your response to an RFP".

 

Joel,

Thank you (and everyone) for your responses.

You seem to understand the situation exactly.  Others seem to think that I am disgruntled about not being awarded, which is not the case.  I am disgruntled that the government appears to have completely changed the project after realizing I gave them a far better solution.  I feel that they used my work product (bid/offer/proposal) to recreate a solicitation that used a completely new route, based upon my submittal to them.  I am upset that I would put forth such effort, hoping to have offered a best solution... only to have the solution taken and used without my knowledge (or compensation).

The repairs that I saw were completed by the awardee, were almost identical to my proposal of repairs.  Keep in mind that the original solicitation was to replace the system, not repair it.... until I proposed a way to repair it.  They then cancelled the original solicitation (which I bid) sometime after the bids were due.  They apparently reissued an alternate solicitation that called for the repairs I had outlined and suggested.

I did contact them and expressed my concerns, and simply asked them how we can resolve this.  I do have a fairly good relationship with this office (or a couple COs in it) after completing a project for them, rated as excellent on all counts.  They do control an amount of work in my local area.

I have a situation where I bid a project asking for the replacement of a certain real fixture on government property.  The soliciting office indicated that they would accept alternate solutions.  I analyzed the fixture and presented a comprehensive plan to repair the operational fixture.

The solicitation was cancelled after the bids were submitted.  I was not notified that there was a rebid but did notice the item had been REPAIRED (not replaced) when I was in the area today.  It was repaired in a manner that was very consistent with my analysis and proposal.

Am I potentially due any compensation for producing the analysis and solution for repairing the fixture at a greatly reduced price from replacing it? Do I have any real recourse in this matter?

Thank you everyone.  It sounds like I have no recourse and I suppose I will just be submitting my offer again.  I will inquire with the NPS about if they released my numbers to anyone.  Also, the original bidder also is privy to what was a winning bid and could give someone that info.  I'm rather dismayed at the course of action here.  There was a prebid today for the re-solicitation and at least 10 guys showed up, representing maybe 6 companies.  Winter here so I am sure more companies are looking for projects, therefor the greater turnout than last time.

I kind of addressed this before but I think I framed the entire situation incorrectly.  The NPS awarded a contract to a competitor.  I was second best offer on the RFP.

There was no requirement for a bid bond BUT there was a requirement to produce a performance/payment bond within 10 days of award. 

Project never gets completed, because awardee could not produce a performance bond, and the project is now up for re-solicitation instead of passing award to me.

If it matters, the only two bidders were the other company and myself.  Both our bids were under the government estimated magnitude for this construction project.

Once I was notified that this all occurred (and before they reissued the solicitation) I insisted that I should be the awardee but the NPS insisted they wanted to resolicit with the exact same solicitation package. Nothing has changed but the dates.

It seems to me that once it was realized that the first awardee could not satisfy the bonding needs within 10 days, the NPS should have acted to disregard them and award to the next responsible offeror.  The NPS waited 120 days (the totality of the POP) before taking any action.

Do I have any recourse?

55 minutes ago, bob7947 said:

You can research by going to FAR 15.206 (e): Cancellation of solicitation.

These seem to largely address the cancellation of a solicitation prior to award, but after bids/offers.

In my case, an award was made and the awardee was unable to perform.  What should happen next if we were second in line with an accepted offer?

On Edit: Also, the general statement in each of these is that the government must have a reasonable basis (deficiency of solicitation) for re-issuance of a solicitation, when in my situation there would be no reasonable basis since the RFP was actually awarded to an offeror that was unable to perform.  Therefor the solicitation is deemed good and reasonable and we are only left with who to award.

I bid a few months ago on a project that I really wanted.  It appears that there were two acceptable bidders (myself and the other bidder).  The other bidder was the low bidder but was never able to provide the necessary bonding, etc, to perform the project.  The soliciting agency is considering reissuing the solicitation instead of moving to the only other bidder (me).  Do I have any substantial or reasonable grounds upon which to contest the reissue and request or demand that award be given to the other bidder (me)?  This was an RFP,  Firm Fixed Price Contract estimated range 100-250k.  The "winner" bid 87k, I bid 97k, so there wasn't a massive pricing discrepancy.  I am hoping to find a requirement to force award rather than go through the entire solicitation process again.

On 12/6/2019 at 10:44 AM, joel hoffman said:

Sorry, Ohio. I missed your response to my question. So, it appears that this is an undefinitized change and that the government recognizes it as an in-scope “change” to the contracted work.

I think that, under the contract terms,  the Government needs to definitize the change through bilateral agreement, if that is possible.

The boards and courts have recognized merit in claims for delays to completion for work which extended the contractors time on site, even if it is within the completion. However, the cases that I have read are under construction contract changes clause or other clauses providing similar relief. Those clauses specifically provide for equitable adjustments or adjustments for increase or decrease to the contractor’s cost or time due to the change. The changes clause also covers  other impacts on the unchanged work.

I don’t know how a board would rule on a commercial services contract claim, that doesn’t contain the standard clauses for this type of work. 

Bottom line is what to do if the KO won’t agree that you were impacted and you can prove the “but for...we would have been done earlier...and this is specifically how I can show the cost impacts for additional labor and... “? 

 I think that you’d need some legal assistance. Such assistance isn’t an allowable cost in preparation or prosecution of a claim. Cost of Legal advice in the form of case law research to confirm that impact of the change on labor costs and the progress is compensable might be allowable for a pre-dispute effort to facilitate contract administration. It might not be in dispute yet. 

I think I have a valid claim... but getting the CO to agree to that fact and authorize additional monies is an entirely different thing.  I did contact an experienced firm and they feel this is pretty cut and dry in my favor.  I suppose I have time to compose a well written and researched letter and request for equitable adjustment that might help me get to my goal here.  Thank you for your help along the way.

9 minutes ago, joel hoffman said:

Did you agree with the “approved amount”?  Or was that amount an interim amount to allow you to proceed, subject to subsequent settlement and agreement? 

It was an interim amount and was tied to the NTP and crane plan approval.  It states simply that it was for "mobilization of a crane to site".

On a related topic, are any of the participants of this thread an attorney who specializes in these matters?

On 12/1/2019 at 2:38 PM, joel hoffman said:

Commercial services contract then.  I wonder how this contract qualifies as pricing as a commercial services contract.

I’m assuming that you priced the contract based upon the description of dismantling and removing a “commercial item” (a floating station)  and pics provided as well as answers to the pre-bid questions and answers provided. 

if it is a service for “a commercial item” there should have been a way to determine what was in the floating station and their weights. 

Regardless, if this is considered a “change”,  then 52.212-4 (c) Changes clause requires bilateral, written agreement...

“(c) Changes in the terms and conditions of this contract may be made only by written agreement of the parties.“

The gov approved a change order for an amount that was roughly half of what we requested, based upon the estimate for crane and time.  However, the project is now complete and the crane time was slightly greater than anticipated and the amount of my company time (on site and administrative) has not been compensated at all.

On 12/1/2019 at 1:04 PM, Retreadfed said:

When did you find out that the weight of the item as represented by the government was inaccurate?  I'm not interested in when you found out the actual weight, just when you found out that the weight the government old you was inaccurate.  Was it before you submitted your proposal, after proposal submission but before award, or after award?

I found out that the weight was likely inaccurate about 2 weeks after the project began.  We were literally working on the project when the error was discovered.

Hi Everyone,

Apologies for the delayed response but, as you might imagine, I was immersed in the matter at hand and in a remote location.

On 11/13/2019 at 12:28 PM, joel hoffman said:

I am assuming that this is a fixed price dismantling, demolition and removal contract for some real property equipment or other improvement. 

How was the actual work to be performed described in the solicitation and Q&A so that you could determine the scope and extent of the work in order to plan and price it? 

Does the contract include a differing site conditions clause (52.236-2) or some other similar clause? 

Yes, this was a fixed price dismantling project of a floating station on an inland lake.  It was under the simplified acquisition threshold.

The work was described by stating 100% removal was required.  There was also a Q&A period in which weights of various items were asked, including the item of concern in my predicament.  Plans (which do not seem entirely complete and excluded any fine details of the subject section of equipment) were supplied along with photos.  In the Q&A period, the weight of the subject piece was specifically asked, and stated to be 15kips.  It was by luck and happenstance that we discovered it was actually 81k (calling crane companies and happened upon the a contractor from the original install).  Once that was discovered, I contacted the COR and simply asked him to verify the weight of the piece, at which time he now stated it was 35kips.  I then went on to gain verification (actual copies of his records) from the original contractor that it was indeed 81kips, which I did receive and at which point I presented the issue to the COR. According to the crane meter, it was over 81k with whatever additional equipment may have been mounted since the original build and some water retention.  There was no doubt that the weight of 81kips was accurate when it was newly installed.

Furthermore, the section was not able to be sectioned or reduced in size prior to removal as it was suspended upon and in the center of the floating station and mostly submerged in water.  We were unable and disallowed to work in or under the water due to the nearby water inlet and the suction it generates.  Further proof that the unit was not reducible might be that it was also installed as one assembly.

The Contracting Officer did authorize a change order that did not allow for our full costs associated with the change.  There was an estimated cost (since we would not know until the work was complete) of which the CO authorized about 60%.  He disallowed any labor costs under the reasoning that the POP was 30 days and that we were still under 30 days, even though we were on schedule to be complete in 3 weeks if not for the change.

I was issued ample time to complete the project, and the deadline was met.  Extending the period by 10 days, including a full weekend of work.  We completed the project 100% on the last day.

Here is the full list of incorporated clauses.  They do not include 52.236-2. :

FAR 52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017)
FAR 52.204-7 System for Award Management (Oct 2016)
FAR 52.204-13 System for Award Management Maintenance (Oct 2016)
FAR 52.204-16 Commercial and Government Entity Code Reporting (Jul 2016)
FAR 52.204-18 Commercial and Government Entity Code Maintenance (Jul 2016)
FAR 52.204-19 Incorporation by Reference of Representations and Certifications (Dec 2019)
FAR 52.204-22 Alternative Line Item Proposal (Jan 2017)
FAR 52.209-11 Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law.
FAR 52.212-1 Instructions to Offerors- Commercial Items (Jan 2017)
FAR 52.212-4 Contract Terms and Conditions-Commercial Items (Jan 2017)
FAR 52.219-1 Small Business Program Representations
FAR 52.219-6 (Dev) Notice of Total Small Business Set-Aside (Deviation 2019-O0003)
FAR 52.232-18 Availability of Funds (Apr 1984)
FAR 52.232-39 Unenforceability of Unauthorized Obligations (Jun 2013)
FAR 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (Dec 2013)
FAR 52.237-1 Site Visit
FAR 52.237-2 Protection of Government Buildings, Equipment, and Vegetation
FAR 52.253-1 Computer Generated Forms
DFARS 252.201-7000 Contracting Officer’s Representative
DFARS 252.203-7000 Requirements Relating to Compensation of Former DoD Officials (SEP 2011) (Section 847 of Pub. L. 110-181).
DFARS 252.203-7002 Requirement to Inform Employees of Whistleblower Rights (Sep 2013)
DFARS 252.203-7005 Representation Relating to Compensation of Former DoD Officials (Nov 2011)
DFARS 252.204-7003 Control of Government Personnel Work Product (Apr 1992)
DFARS 252.204-7004 Alternate A, System for Award Management (Feb 2014)
DFARS 252.204-7008 Compliance with Safeguarding Covered Defense Information Controls
DFARS 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting (Oct 2016)
DFARS 252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support
DFARS 252.209-7004 Subcontracting with Firms that are Owned or Controlled by the Government of a Country that is a State Sponsor of Terrorism
DFARS 252.223-7008 Prohibition of Hexavalent Chromium (Jun 2013)
DFARS 252.225-7048 Export-Controlled Items
DFARS 252.232-7003 Electronic Submission of Payment Requests and Receiving Reports (Jun 2012)
DFARS 252.232-7006 Wide Area WorkFlow Payment Instructions
DFARS 252.232-7010 Levies on Contract Payments (Dec 2006)
DFARS 252.237-7010 Prohibition on Interrogation of Detainees by Contractor Personnel
DFARS 252.243-7001 Pricing of Contract Modifications (Dec 1991)
DFARS 252.244-7000 Subcontracts for Commercial Items
DFARS 252.247-7023 Transportation of Supplies by Sea (Apr 2014)

I appreciate all of the advice and pointers in the right directions.  I will research the clauses and see what I can do with any of it if needed.

I know it is never as simple as this... but in essence this is the same (to me) as if the government asked for bids to remove a pile of dirt and in the Q&A it was asked "how much dort is there in that pile"..... the government replies "there are 15 tons of dirt in that pile" and their turns out to be 81 tons of dirt, I can't imagine any circumstance where there would be no added value consideration.

The basic issue is that the government identified a certain component as weighing X and it actually weighs Z (about 6 times the stated weight.  This requires us to bring in a large crane at an added cost of about 30 k.  They incorrectly identified this weight via a specific question about that in the pre-bid  Q&A.The other issue is that it is causing an extra week of work between the work involved in discovering the mistake, working to get the right equipment lined up... and then the work to process the much larger piece.  We could have originally disposed of it by setting it on one truck and hauling away... now we will have to manually reduce it into at least four pieces to do the same.

The government did finally approve the extra equipment cost but refuses to add any cost for the extra week, stating that the POP was 4 weeks so I am not over the POP.  Although I would have clearly been done in 3 weeks if not for their mistake. 

I suppose it's better than nothing but I still don't think it was fair.

5 minutes ago, ji20874 said:

Read the Disputes clause of your contract.  You can also read FAR Subpart 33.2 to see the contracting officer’s instructions.  If you submit a claim amenable to that clause, and the contracting officer denies it, you may appeal to the board of contract appeals or a federal court — the denial letter should include the appeal instructions.

But first, read all of your contract.  Did the Government warrant or guarantee the weights in the contract, or were the weights provided as estimates and as a courtesy?

Did you comply with any contract terms that mandate prompt reporting of differing conditions to the contracting officer?  If not, you may have forfeited your right to a contract adjustment.

Best wishes!
 

I will go through those clauses and the contract.  As you might imagine, this issue and the project itself has consumed all of my time so far.  I reported this to the government as soon as I could verify it was accurate.  Within 2 days of finding out.

The weight of the unit in question was provided in a pre-bid Q&A, in response to a question specifically about its weight.  There was no site visit available nor could you inspect this unit up close, if you chose to do so independently, since it is within a restricted area.

Hi guys and gals,

I am on a project that I won for 85k.  A dismantling project in which the government stated the weights of various elements.  Problem is that the farthest item was stated as weighing 15k lbs but we discovered during the course of work, that it actually weighs a whopping 81k lbs!!

It was only by a stroke of luck that we came into contact with a subcontractor that was involved in the original build and found this info out, during the course of the project.  Not only has this error led to a significant delay but also in greatly increased cost as any options to remove this fixture have been reduced to only one option, a large crane that costs 4 times as much as our intended method of a smaller crane.

The government seems to be resistant to approving the change order even though the mistake is egregious and clearly theirs.  The increase in cost is over half the value of the contract at about 50k.

If the government ultimately denies my claim, what are my options?  I can pay out of pocket for the extra costs but can I recover them after the fact?  If I accept regular payment at the end of the contract, can I still pursue the additional cost?  This has become a major snag in a project that was running smoothly and right on schedule.  I'm sick about it.

22 hours ago, joel hoffman said:

I learned early on to not expect anything more than the bare minimum from many contractors, particularly with the low bid, IFB acquisition methods. Of course, bidders respond to the method imposed upon them. You get what you pay for.

Best value,  trade off rid us of most of the dirt bags. There may still be a few hopping around from place to place...

As a contractor, I can confirm that there are a LOT of "dirtbags" in the construction business.  A lot of inexperienced, wham-bam-thank-you-ma'am types.  The tough part is being good and charging appropriately when competing with these types.  I service a couple national chains locally and the president of one told me once that I had two reputations with them.  I was expensive and I was good.  

My approach to government work has really been that I bid the price I am comfortable with.  If I get the job, great... it is worth my time.  I'll travel anywhere for the right price.

12 minutes ago, C Culham said:

I agree with @formerfed with regard to "no excuse" however a "week or two" puts you in the category of untimely whether literally with regard to regulations or otherwise.  The very reason I provided you with some regulatory citations that may be of use.  Be timely, quote them with regard to your requests as appropriate  and see where your requests go.

I'm not sure what you mean by timely in this regard.  I am only seeking award status (which hasn't been noticed anywhere else either).  If you mean timely as in 10 days to file a protest, that time should begin after an award declaration is or should have been known.  Some awards take a week to decide... others take over a month.... some take longer.  I have one project that is past 30 days but the CO is responsive to my follow ups.  I have contacted him once at the two-week mark and then again right after the four week mark.  He has responded both times and advised that his office has just been incredibly busy and he is working on it.  The project is something that they do need done to prepare for the next project.