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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 -
Under FAR Clause 52.222-11 - Subcontracts (Labor Standards) , does the actual reporting requirements stop at the Prime, or at the contracting officer? Fixed Price Construction IDIQ. All contractors/subcontractors are SB. As an example: Prime uses one subcontractor. The subcontractor (acts like a prime and) subcontracts all of the actual work. The Prime does not interpret 52.222-11 to mean that all of the document generation requirements under this clause get sent to the CO; rather, submittals like Payroll, Form 1413, Apprentice Certifications and such stop at the Prime. Prime believes they only need to submit said documents on the first tier subcontractor. Initially I read the clause and disagreed; it seemed an easy way around Federal labor laws if this were the case. After reading through para (d)(1) and (d)(2) of the clause a few more times, what seemed clear at first no longer seems so. Para (d)(2) states that the Contractor shall deliver an updated 1413 for additional subcontracts, which seems to imply that additional lower tier subcontractors do not generate a new 1413 -they just get added onto the current one. After thinking about this some more, I think it's a poorly worded and confusing clause. I think the intent may be that a subcontractor should read (d)(1) as if he were the Contractor being referred to in the clause, and therefore the requirements apply to himself/herself as well. I want to say that in (d)(2), any subsequently awarded lower tier subcontracts get updated on the 1413 for that subcontractor. In turn, the lower tier subcontractors have to repeat this process until no more subcontracts occur. Can anyone weigh in?
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Is signing/accepting on the civil engineering block of AF 3000s an inherently governmental function? Our civil engineering office has contracted employees working as project managers that, in the past, have signed material submittals. We do not use CORs.
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I have an upcoming modification to a construction contract for work within scope, which will increase the contract price by <$150k. The Payment and Performance Bonds have been required by the contract and provided by the Contractor. In all previous modifications, the Government has paid the Contractor's bond rate for each increase. IAW FAR 28.102-2(d), if the contract price increases, the Government must secure any additional bonding needed. Is there any wiggle room on this? We only have a certain amount of funding and applying the bond rate to the Contractor's proposal puts us over that amount. Can we not require additional bonding for any given modification? Any help would be appreciated. -
Far 36.301(b)(3) - Use of Two-Phase Design Build Selection Procedures lists the following criteria to be considered by CO's in order to use design build selection procedures in construction projects. 3) The following criteria have been considered: (i) The extent to which the project requirements have been adequately defined. (ii) The time constraints for delivery of the project. (iii) The capability and experience of potential contractors (iv) The suitability of the project for use of the two-phase selection method. (v) The capability of the agency to manage the two-phase selection process. (vi) Other criteria established by the head of the contracting activity. Most of the points seem pretty straight forward. My question deals with (iv) because it seems so vague, possibly by design no pun intended. For those of you with experience, what factors would contribute to the suitability of a construction project to use "design-build" as opposed to "design-bid-build" or another way I'm not thinking of? -
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?
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I had a brainstorming function the other day where we discussed what evaluation factors we would want to use in a few construction requirements. The usual evaluation factors that seem to be universally used came up such as Résumés, Experience, Past Performance, Bonding etc. The RFP will be set-aside for small businesses and the evaluation method is going to be LPTA. What’s noticeable about the evaluation factors we came up with is that all but one of them could be tied to one of the general standards of responsibility at 9.104-1, which would require the referral of any lowest priced offeror rated technically unacceptable to the SBA for a certificate of competency. I don’t take issue referring matters to the SBA, but at the same time I also don’t really like the idea the SBA gets the final say or force me to go through a different process if I disagree. I’m not really looking to solve any problem but more out of curiosity. Whether actually applied or thought up off the top of your head, what are others using for evaluation factors for LPTA (construction or other) solicitations set-aside for small businesses? I did briefly look at a few solicitations posted to FBO and it makes me believe evaluation factors that amount to matters of responsibility are widely used.
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Good morning and happy EOFY16. I'm interested in knowing how other construction teams structure their IDIQs in terms of reconciling RS Means labor rates with Prevailing wage labor rates (assuming RS Means is the required pre-priced UPB required under contract). Here are my assumptions: I've looked through the RS Means cost data labor rates at the back of each cost data book and note that the national union rates are generally up or down, but mostly below prevailing wages. I've noted that RS Means uses a City Cost Index (CCI) to apply a rate adjustment based on locality which is often a rate increase per locale, but often after application, the wage is still under the prevailing wage (under the latest Construction Wage Rate). I understand that using RS Means comes with issues and there is an ongoing debate about whether it saves the Government money (I understand many feel RS Means prices are inflated and does not save the Government money). So I've been perusing SABER IDIQ Specifications/Statement of Works that incorporate RS Means as a UPB and Costworks, or e4Clicks as the estimator (or Timberline for older specs). I see a lot of the specifications request that the contractor use total bare costs, based on national average rates, defined by the RS Means price books. What I hear from contractors is that these rates do not often match the prevailing wages, and so they are forced to provide "extra" labor hours to compensate for the cost of the prevailing wage they are operating under. I've heard it's possible to integrate a custom set of labor rates depending on the estimator a contractor or agency is using (such as plugging in prevailing wage rates in the estimator of choice) but I haven't actually seen this laid out in a Spec/SOW example. My question is, how are your agencies handling this issue (is it a issue?), or is there a generally accepted better method to pre-price construction projects than using RS Means that your agency is using? I admit I may not fully understand all of the issues with using RS Means so please understand I am on the learning curve.
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A little advice: Has anyone ever encountered a VA Employee contacting an outside union, like the Pipefitters Union and asking them to visit a construction site of a Construction Contract you are currently administering. Is there any regulation from preventing a VA Employee, with no stake in the project, from contacting Union Reps outside of the VA? Is there any case law stating the legality of such an action? On the surface, to me, this seems highly irregular but I want to find out if anyone else has dealt with such an issue. Any insight into this would be greatly appreciated, if you have or need any other questions answered to get a full and detailed picture please let me know. I will do my best to answer them.
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I'd be interested to know how Operational DoD offices have been handling the surveillance requirements for construction contracts. Under FAR 46.4, - Quality assurance surveillance plans should be prepared in conjunction with the preparation of the statement of work. Under DFARS 246-401 - For contracts for services, the contracting officer should prepare a quality assurance surveillance plan to facilitate assessment of contractor performance, see 237.172. ... (this seems to imply FAR 37 Service contracting - does FAR 37 Service contracting include construction? Under Subpart 37.3 - it discusses Demolition and Construction Wage Rates - it seems the argument on whether Construction contracting can be considered a Service is becoming more obscure, instead of clear). DoDi 5000.72 - Table 2 (Minimum requirements for Types A, B, and C training are described in Tables 2, 3, and 4, respectively.) infers that a Surveillance Plan is required. Perform technical and administrative contract surveillance and reporting responsibilities in accordance with the letter of designation and surveillance plan. However in DoDi 5000.72 - Table 1 it suggests a QASP only under performance-based services (not mentioning a QASP anywhere else in the DoDi). 24. For a performance-based services contract, order, or agreement, perform on-site surveillance in accordance with the QASP Otherwise, the DoDi is silent on surveillance. Does this mean the agency should determine their own surveillance requirements for construction? There doesn't seem to be anything written that says we shouldn't build a QASP in conjunction with construction Statement of Works. But for those that do construction contracting, it seems redundant to do so. In fact, the entire COR designation requirement for construction seems redundant since the majority of Program Managers already perform inspection (blue books, daily inspection logs, etc IAW with their own internal Civil Engineering procedures... which are ultimately handed over to contracting as part of the close-out file). How do your office handle surveillance?
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Regarding the use of Unit Pricing Books such as RS Means which provides pre-priced, construction cost data for estimation purposes -for those you out there that use this method for price comparison in your Construction contracts, do you consider your evaluations to be accurate? What if your Prime is a construction management firm that takes 15% and subcontracts the rest out?
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The FAR does not seem consistent when it comes to classifying construction as either a type of service, or its own separate "construction" category outside of a service. I think this is important to know so that clause prescriptions that say "include in contracts for services" are applied appropiately to construction contracts. Here is the evidence I found to support both determinations: Evidence that construction is NOT a service: Ask a Professor: Construction is a separate entity covered in FAR Part 36 and is not considered a supply or a service (https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=114335) FAR 37.00 states that R&D Services are found in part 35, and Architect-Engineer Services are in Part 36, but it does not say that Construction is in Part 36. Omission must mean they are not services. Construction is not one of the examples under the definition of Services in 37.101 Far 37.3 discusses that dismantling, demolition, or removal of improvements falls under the Service Contract Labor Standards unless further work which will result in the construction, alteration, or repair of a public building or public work at that location is contemplated. If further work is contemplated, the work would fall under the Wage Rate Requirements (Construction) instead. FAR 36.101© says “A contract for both construction and supplies or services shall include..”, which clearly indicates construction is separate from services. Evidence that construction IS a service: Construction logically falls under the definition of services since it is a “contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task” FAR 37.110(a) says “The contracting officer shall insert the provision at 52.237-1, Site Visit, in solicitations for services to be performed on Government installations, unless the solicitation is for construction.” If Construction was not a service, there would be no need to put the qualifier at the end of the sentence. FAR 13.000 says “This part prescribes policies and procedures for the acquisition of supplies and services, including construction,…” Is there an official determination on whether construction is considered a service or not?
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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.
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FFP construction contract in SC. Competitive IFB, SDVOSB set-aside. Question on behalf of the prime contractor. The government is required to promptly reimburse a contractor the cost of performance and payment bond premiums per FAR 52.232-5(g). Bonding companies generally require prime contractors also obtain bonds from subcontractors for subcontracts over a certain threshold (usually $250k for small-midsize companies). The prime contractor has several instances of where the subcontractor bond premium was reimbursed by the government along with the prime’s own bond premium AND several instances (from the same agency no less) where the pay application was denied on the basis of the subcontractor’s bond not being a government requirement. In my opinion, the subcontractor bond (required by the bonding company of the prime contractor) qualifies as “coinsurance” as stated in FAR 52.232-5(g) because without the subcontractor bond, the bond premium rate applied to the prime (for the entire value of the contract) would have been higher. Is anyone aware of any case history or regulatory references that substantiate or refute my position? Thanks in advance.
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I am at a base level operational contracting office. A new DoDi came out 26 Mar 15 - number 500.72 - titled DoD Standard for Contracting Officer's Representative Certification. Apparently this new instruction mandates COR's for construction contracts and the inclusion of these COR's in the CORT tool. Am I missing something, but haven't COR's always been required for construction contracts? The reason I am curious is anyone else trying to come up with a plan to comply with this requirement? Does anyone else within DoD use CORT tool for their construction CORs ? This office has had 'inspectors' but never full fledged CORs.....just posting for a little discussion.
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Contract Type: Design Build - FFP Scenario: First tier subcontractor to prime contractor refuses to submit its invoices in the schedule of values format required by the prime contract. Background: 1. The prime contractor incorporated the schedule of values invoicing requirement into the subcontract; subcontractor concurred and signed subcontract. 2. Subcontractor attempts to "front load" charges into its invoices and demands prime contractor pay subcontractor well in advance of what prime can bill government for said charges under the required schedule of values. 3. Prime contractor contacts subcontractor to discuss on multiple occasions; in each discussion, subcontractor advises it will not comply with required invoice format. 4. Prime contractor notifies the KO of the situation and its intent to withhold subcontractor payment in accordance with the procedures set forth in 52.232-27(e). 5. Prime contractor issues a formal subcontractor withholding notice conforming to the requirements of 52.232-27(g). 6. In reply, subcontractor notifies prime contractor to "pound sand" and continues in its refusal to submit invoices in the schedule of values format required. 7. Prime contractor notifies KO weekly of status of situation and continues (on a nearly daily basis) in its attempts to get the subcontractor to submit a proper invoice. Question: Is the prime contractor required to submit subsequent subcontractor withholding notices until the situation is resolved or will prime's actions in Item 7 above suffice? If additional notices are required, is there a specific frequency required? -
I am a contractor working on a FFP electrical construction project for the Navy in SE Georgia. The contracting office is planning to change the CO and ACO. I know this is fully within their right, but the CO and ACO they are planning are individuals that I have worked with before. They are abusive, don’t act in good-faith, and would basically be considered “high maintenance”. Do I, as the contractor, have any right to object to the change? Had these individuals been identified in these roles from the beginning, my price may have been different or I may not have bid the project in the first place.
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Help! I am a prime contractor working on a (competitively bid, edwosb set-aside) FFP Air Force construction project in NW Florida. I am processing a change order and the government contracting officer is indicating that I will not be able to add overhead and profit markups on my subcontractor’s markups. I AM permitted to account for my additional labor, materials, and supervision hours (with markups), and normal OH and profit markup to the subcontractor’s direct cost, but NO OH or profit markup on the portion of my total subcontractor’s price that result from his OH and profit markup. These costs are a part of my subcontractor’s price and are my “direct cost” (as I read FAR 43.203( b )(2)). Further, there is no place on the AF Form 3052 to segregate these costs as subcontractor costs would be added as a direct cost in column 9. The subcontractor effort will probably be less than 70% of the change, but this isn’t relevant since FAR clauses 52.215-22 or 52.215-23 “Limitations on Pass-Through Charges” are NOT included in the contract and, as I understand them, are intended for cost reimbursable type contracts anyway. The contract does include standard limitations on subcontracting that apply to the total value of the contract (labor, as this is a construction project), not to a specific change order. Can anyone give me a definitive source that I can reference for this Contracting Officer confirming that a prime contractor’s overhead (and profit) markup on subcontracted efforts (based on total subcontract price) is allowable? Of course, I am willing to negotiate in good faith if they return the same. If it helps, like most small business, CAS is not applicable and we do not have separate G&A and Overhead pools, only one comprehensive overhead rate. Thanks
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Help! I am a prime contractor working on a (competitively bid, edwosb set-aside) FFP Air Force construction project in NW Florida. I am processing a change order and the government contracting officer is indicating that I will not be able to add overhead and profit markups on my subcontractor’s markups. I AM permitted to account for my additional labor, materials, and supervision hours (with markups), and normal OH and profit markup to the subcontractor’s direct cost, but NO OH or profit markup on the portion of my total subcontractor’s price that result from his OH and profit markup. These costs are a part of my subcontractor’s price and are my “direct cost” (as I read FAR 43.203( b )(2)). Further, there is no place on the AF Form 3052 to segregate these costs as subcontractor costs would be added as a direct cost in column 9. The subcontractor effort will probably be less than 70% of the change, but this isn’t relevant since FAR clauses 52.215-22 or 52.215-23 “Limitations on Pass-Through Charges” are NOT included in the contract and, as I understand them, are intended for cost reimbursable type contracts anyway. The contract does include standard limitations on subcontracting that apply to the total value of the contract (labor, as this is a construction project), not to a specific change order. Can anyone give me a definitive source that I can reference for this Contracting Officer confirming that a prime contractor’s overhead (and profit) markup on subcontracted efforts (based on total subcontract price) is allowable? Of course, I am willing to negotiate in good faith if they return the same. If it helps, like most small business, CAS is not applicable and we do not have separate G&A and Overhead pools, only one comprehensive overhead rate. Thanks
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There is currently a topic of great debate in our office and I would like to get some additional opinions on the subject. When a contractor has requested an extension to the period of performance based upon excusable delays due to unusually severe weather experienced on a construction contract, what is the proper modification authority? I would be highly interested in reviewing any associated case law on the subject. The majority opinion is that the Contracting Officer may extend the period of performance citing FAR 52.249-10 - Default (Fixed-Price Construction) as the modification authority. The minority opinion is that this a misinterpretation of the Default Clause and authority should be found elsewhere in the FAR. I reviewed Administration of Government Contracts by Cibinic, Nash, and Nagle and found discussion on this topic, but not a direct answer to that question. My hope is that I can provide case law or another definitive source that can settle this debate. Thank you.
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A few years ago, an official (Army? Corps of Engineers?) issued what I think was a policy letter explaining why construction is not a commercial item/service. Has that letter (that I can't find now) been superseded or rescinded by another letter or DFAR/FAR regulation? After many internet, DFAR, & FAR searches, I turn to you for help! Thanks!
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Who owns possession of the contruction site of a full building renovation? Senario: The A&E left a piece of equiptment off the drawings for salvage and was partially demoed by the construction contractor. The Government informed the contractor that this piece of equoptment was to stay and be reinstalled once the building was complete. The item stayed in the building for over one year and is now missing. Who is at fault. The Governmnet placed original fault on the A&E firm for the inaccurracy in the drawings. However, once a decision was made to salvage the equiptment and it had been in the building for one year and the construction contractor was made aware it is not his responsibility to make sure the item was salvaged and kept safe. A proposal was recieved to replace the missing equiptment (8k). The construction contract was for $8 million. I was initially looking at FAR 46 to see where the burden of liablity was and then on to 52.228-5 for property damage insurance. What clauses would help in this instance. Is the construction contractor responsible for the building and losses while in their possesion during construction prior to subtaintial completeion and final acceptance?
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Question: In the context of FAR Part 45 and proper disposition of government property upon task completion, how should the contractor account for and dispose of the remnants of incidental construction "modifications" (fencing, etc.) to a leased space/facilty? Background: Contractor has been tasked to provide services on a cost reimbursable contract for which a facility lease is required (deemed incidental to the services). The costs for lease, maintenance, and "modifications" to the facility were proposed and direct charged to the task. In order to render the facility suitable for the services to be performed in the facility, modifications were required on the leased premises, such as an exterior fence (for security); roll-up doors (for large vehicles), concrete and asphalt work, electrical wiring, compressed air, etc..
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So I am seeking opinions, and hopefully evidence. I want to consider the DFARS definition of consolidation of requirements only, and not to even discuss bundling, my scenario is OCONUS and FAR 19 for the most part doesn't apply and neither does bundling. However, DFARS part 7 does apply and there is debate regarding how to apply the definition of consolidation to construction requirements. DFARS -207.170-2 Definitions. “Consolidation of contract requirements” means the use of a solicitation to obtain offers for a single contract or a multiple award contract to satisfy two or more requirements of a department, agency, or activity for supplies or services that previously have been provided to, or performed for, that department, agency, or activity under two or more separate contracts. Furthermore, the DoD Office of Small Business Programs further defines bundling and consolidation in their Guidebook dated Oct 2007. http://www.acq.osd.mil/osbp/news/Bundling%20Guidebook%20October%202007.pdf in this guidebook the definition of consolidation states "As recently defined in statute, for a consolidation to exist, the proposed acquisition must be combining two or more requirements that were previously provided or performed under separate contracts." It also gives a definition of consolidation and "new work" in that it says a previously performed requirement combined with "new work, i.e., work that has never been performed under contract." is still consolidating. So how would these definitions ever apply to construction? The argument is that Agency XYZ has previously built a Dining Facility at Fort Fairy Tale. So when you go to build a Dining Facility at Fort Dumbo you have a previously performed requirement under a separate contract. I disagree with that interpretation, they are totally separate requirements because they are totally separate locations with different environments, site conditions, etc. In conclusion I don't see how consolidation definition can ever apply to construction. I can see how bundling could apply to construction because that has to do with limiting small business participation. But I believe consolidation strictly applies to supplies/services. For those who know construction, there are individuals that believe if you combine two facilities, you are "consolidating", and then those who think only when you combine separately appropriated Project Numbers it is considered "consolidating". I have yet to been given any evidence supporting these claims, just passing along the info I've been given, and not saying there isn't evidence either. Agree? Disagree? Have any evidence? Let me know. Thanks!
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Good day! My question is about selecting the correct labor law to apply to a subcontractor. If the subcontractor is performing a "service" on a DBA construction site, employs no laborers, mechanics, apprentices, trainees or helpers, is the work subject to the Service Contract Act or Davis Bacon Act? Anxiously awaiting your response!
