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TAP

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  1. Just wondering if anyone was familiar with the Buck Town Contractors ASBCA case confirming the Government's failure to identify a defect during construction is a constructive waiver of the specifications?  This would seem to have rather significant ramifications on Government inspection, acceptance, and payment of invoices on construction contracts. 

    60939, 60940, 60941 Buck Town Contractors & Co. 12.17.19.pdf

  2. Take a look at FAR 52.219-14 Limitations on Subcontracting, and the clause prescription; "The contracting officer shall insert the clause at 52-219-14, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed $150,000."  This may answer your questions.

  3. Yes, I could imagine such a set up working quite well on a large BOS contract for example, with IDIQ line items for certain over and above facility repair work such as roofing, HVAC, fire protection, elevators, security systems, etc.  It might make sense to put all them under a single solicitation, and then make multiple awards for the various items of work whether single or multiple offerors get awarded contracts for specific CLINs.   

  4. No, you understood correctly. It appears I misunderstood or misremembered some guidance I was given years ago on the subject by our lawyer. But the components (AHU sections) weren't domestic anyways, so in this case it really didn't matter. Thanks for straightening me out though. I learn something new every day.

  5. As the Canadian made AHU sections weren't manufactured in the United States I don't see how I erred. Simple assembly of those section doesn't constitute being manufactured in the United States.

    52.225-9 Buy American-Construction Materials.

    “Domestic construction material” means-

    (1) An unmanufactured construction material mined or produced in the United States;

    (2) A construction material manufactured in the United States, if-

    (i) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or

    (ii) The construction material is a COTS item.

  6. Vern,

    I may have mixed up some TAA terminology here, but I think to determine the country of origin it's essentially the same. I had a contractor who wanted to "assemble" non-domestic construction material (in this case a large AHU that comes from the manufacturer in sections) on-site and call it "domestic". Naturally I told him no. He then asked what if they assembled it off-site? I told him that such assembly doesn't substantially transform the AHU and therefore wouldn't qualify as "domestic". Not to mention the sections would come from Canada, the contract was below the TAA threshold, and the AHU would have to be disassembled first to physically fit into the mechanical room and then reassembled. They had to substitute an American made AHU for the Canadian made one they were planning to use for the project.

  7. To meet the Rule of Origin test an article has to be “substantially transformed into a new and different article.” Acceptable would be actual manufacturing and/or meaningful and complex assembly. The gist of this is that to qualify, most of the value in the product must originate in the “designated country”.

  8. "The CO is stating that the award cannot be made to that vendor because the NAICS is not resident in SAM."

    How do they come up with these things? With this logic a contractor would have to list all possible NAICS codes in SAM they potentially might want to compete for or otherwise risk being excluded from award. There was a "Federal Contracting Myths" blog thread a while back, and it never ceases to amaze me all the "myth-information" that exists in the 1102 world. Here's another one:

    "While it would be convenient to extend the contract performance period beyond one year, the only way to extend a performance period is by use of an option to extend the performance period. If that were possible to extend a contract beyond the performance period without the use of option periods, we would have "extended" the performance period on the IDIQ ______ contract, as we had a lot of capacity remaining, but it had no additional options. So the Government had to re-procure."

    In this context we were discussing the possibility of extending an IDIQ contract that was awarded on sole-source basis under the SBA's 8(a) program. See if you can find all the myth-information.

  9. I don't see anything wrong with using RFP in the context of requesting proposals for a new task order against a multiple award contract. If you had 2 or more small business you could send out a "notice" of a planned small business set-aside for a new task order, then based on the response send out the actual task order "solicitation" (RFP) accordingly once the acquisition strategy was determined.

  10. Joel,
    I understand that no adjustment is provided for the G&A, Overhead or profit elements under paragraphs (d) and (e) of clause 52.222-43, and that's not what I am saying. It's understood that the adjustment is provided under the clause to reflect the Contractor’s actual increase or decrease in applicable wages and fringe benefits, social security, unemployment taxes and workers’ compensation in order to comply with a new wage determination. But if a contractor includes contingency for G&A, Overhead or profit for a potential increase in wages and fringe benefits that may or may not happen, then it is to cover increased costs (G&A, Overhead or profit associated with a potential increase in wages and fringe benefits) for which adjustment is provided under the clause.

    I don't think that was intended and I don't think it is right, but as written it could be interpreted it that way.

  11. With the total estimate being $30k with $15k being the price of the 3 units "and the rest labor", then the labor wouldn't be incidental to the purchasing of supplies, and if performed on Government property would have to be covered by either DBA or SCA. Since it's not a building or public work, then it would not be DBA. The definition of 23410 HEATING, VENTILATION, AND AIR-CONDITIONING MECHANIC, in the SCA DIRECTORY OF OCCUPATIONS reads: "The Heating, Ventilation, and Air-Conditioning Mechanic installs, services and repairs environmental-control systems..." So I would say the installation would be considered service work covered by SCA.

  12. I had this happen on a DBA covered contract as well. What I told the 8(a) contractor was:

    “See the attached response from the US Department of Labor to your request for an additional classification and wage rate to General Decision Number XXXXXX, contract XXXXXX-XX-X-XXXX. As stated in the letter, the conformed rate for "Glazier" is $12.92 per hour. This is the minimum wage for all workers performing in this classification under this contract. This conformed wage rate will be paid retroactively to the first day work was performed in this classification. No contract modification or price adjustment shall occur as a result of this conformance.”

    They had proposed a wage rate of $10.00 and all were in agreement, but DOL said $12.92 per hour.

  13. A “conformance” per FAR 52.222-6 Davis-Bacon Act approves additional classifications. It does not change the contract or add a new wage determination. Theoretically the conformance process just enforces © (1) (iii) below ensuring the contractor pays a reasonable rate in compliance with the clause.

    “…©(1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe benefits therefor only when all the following criteria have been met:

    … (iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.”

    The contractor in my case was told this was between them and DOL. They could dispute it with DOL, but felt it was in their best interest to agree instead so they had to eat the costs. They were a SDVOSB as well, and the amount was over $50K.

  14. We do include the applicable clauses. What I said was if we have pre-priced ELINs (typically a single award IDIQ) then we don't include a new wage determination because the prices are for the option period and the wage determination included at the time the option was exercised covers the option period. If it doesn't have pre-priced ELINs (typically a MACC) then we do include the current wage determination with the RFP becase there is no established pricing for the option period and no need to include a wage determination when the option is exercised because there is no established pricing that may need to be adjusted if wages and H&W were increased.

  15. jwomack "“Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise“Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise wise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications.wise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications...." In this would include a task order. If the IDIQ basic contract is already priced, that is to say it has pre-priced ELINs, then we don't include a new wage determination. If it does not have pre-priced ELINs, then we do include the current wage determination with the RFP and task order.

  16. Our command's process for REAs states; "Verify that Contractor's letter clearly states that the request is an REA (versus a contract claim)." And, "Immediately obtain written clarification from the Contractor if the Contractor’s letter does not clearly identify whether the request is an REA or a claim." Also, DFARS 243.204-70 talks about converting the request (REA) to a claim under the contract disputes act.

    Maybe it's a distinction without a difference? But unless I knew the contractor's intent was to file a claim and that there was an actual dispute, I would have assumed it was a REA. You learn something new every day.

    Thanks Vern!

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