Job Order Contract

[bob7947]

Posted for Xactly

I have a unique situation with no easy solution. I have an existing Job Order Contract, or JOC (similar to a SABER contract). For those familiar with this contract vehicle, a JOC is an IDIQ contract to perform basic construction projects. It's origins and history have all been set for construction projects that are simple and/or do not require stamped design drawings.

In an attempt at customer satisfaction, the last JOC awarded in my command inserted language (right, wrong, or indifferent) for up to 10% of the projects to be design/build. What ended up happening, however, is that design/build was used far in excess of 10%. Because we did not originally solicit contractors with Design/Build experience, we awarded to a company that lacked this expertise. Long story short, it was a long and painful learning curve, however it currently is a preferred procurement method for design/build projects with a turnaround timeframe of less than 90 days.

Now it is time to solicit a new JOC vehicle, and I'm at a loss as to what to do. I proposed to have two separate JOC contracts; one for the 'standard' work (less complex, no design), and one for Design/build projects. The contract for standard JOC work is already underway with no hiccups. However, I have been informed that we may not be able to do to have a Design/Build JOC because it would violate the Brooks Act. The answer I have been given is to use a Multiple Award Construction Contract (MACC, or MATOC). This, however, does not meet the customer's needs because our field offices are often getting turanaround timeframes of less than 90 days (often less than 60 days). Because a field office must submit a Task Order RFP amongst MACC awardees for competition, the added time in administration makes the timeline too long.

Now, "word on the street" is that a lot of JOC and SABER contracts often stretch the definition of 'simple design' in order to get a design/build project done. There are also contracts similar to the one we did that had a design/build element, but the definitions of design and the requirements are sketchy. I have found little in FedBizOpps that contains an element in the procurement like the one I am proposing, and I have found absolutley zilch that resembles a Design/build JOC. I don't want to do the wrong thing, but at the same time, I want to meet the customer's needs. Does anyone have a solution that will both meet the needs of my customers, and that my legal department and Chain of Command will accept?

I welcome all feedback...but please be gentle with me.

[Guest carl r culham]

Reading through the information it seems that everything hinges on the conclusion that your design/build JOC should follow Brooks Act process. Can you shed a little more light on why it is felt that Brooks Act would apply?

[joel hoffman]

Posted for Xactly

I have a unique situation with no easy solution. I have an existing Job Order Contract, or JOC (similar to a SABER contract). For those familiar with this contract vehicle, a JOC is an IDIQ contract to perform basic construction projects. It's origins and history have all been set for construction projects that are simple and/or do not require stamped design drawings.

In an attempt at customer satisfaction, the last JOC awarded in my command inserted language (right, wrong, or indifferent) for up to 10% of the projects to be design/build. What ended up happening, however, is that design/build was used far in excess of 10%. Because we did not originally solicit contractors with Design/Build experience, we awarded to a company that lacked this expertise. Long story short, it was a long and painful learning curve, however it currently is a preferred procurement method for design/build projects with a turnaround timeframe of less than 90 days.

Now it is time to solicit a new JOC vehicle, and I'm at a loss as to what to do. I proposed to have two separate JOC contracts; one for the 'standard' work (less complex, no design), and one for Design/build projects. The contract for standard JOC work is already underway with no hiccups. However, I have been informed that we may not be able to do to have a Design/Build JOC because it would violate the Brooks Act. The answer I have been given is to use a Multiple Award Construction Contract (MACC, or MATOC). This, however, does not meet the customer's needs because our field offices are often getting turanaround timeframes of less than 90 days (often less than 60 days). Because a field office must submit a Task Order RFP amongst MACC awardees for competition, the added time in administration makes the timeline too long.

Now, "word on the street" is that a lot of JOC and SABER contracts often stretch the definition of 'simple design' in order to get a design/build project done. There are also contracts similar to the one we did that had a design/build element, but the definitions of design and the requirements are sketchy. I have found little in FedBizOpps that contains an element in the procurement like the one I am proposing, and I have found absolutley zilch that resembles a Design/build JOC. I don't want to do the wrong thing, but at the same time, I want to meet the customer's needs. Does anyone have a solution that will both meet the needs of my customers, and that my legal department and Chain of Command will accept?

I welcome all feedback...but please be gentle with me.

X, I don't believe that the JOC process complies with the Brooks Act requirements for acquiring A-E design services or with FAR 36.104 restrictions/authorizations for acquiring D-B services in lieu of the Brooks Act, but I may be wrong. Please consult an attorney who can research the appropriate authorities for D-B.

FAR 36.104 essentially says (in part) that unless the Brooks Act procedures for traditional Design-Bid-Build are used (FAR 36.6), design-build process must use the 2 phase, competitive D-B procedures (FAR 36.3) ** unless some other authority is available. Read another way, it essentially says that the D-B-B process must be used, absent other authority to use D-B in lieu of D-B-B .

The "One step Turnkey" competitively awarded D-B process in 10 USC 2862 may also be used, where appropriate, for Military Construction (MILCON and family housing), but not for the Coast Guard or for Civil Works for the Corps*.

The Corps and NAVFAC have used the 2 phase process for selecting Multiple Award Design-build ID/IQ base contract holders, who compete for military D-B task orders (Corps calls them "MATOC's" and NAVFAC calls them "MAC's"). Although I don't have immediate access to it, the concept of the Corps using MATOC's for Design-Build was challenged a few years ago in US Court and the Government prevailed.

The Corps also used Single award ID./IQ's for awhile but they selected the contractor, using a 2 phase D-B process. A single contractor would then be issued task orders for D-B projects. We aren't currently using that process and I'm personally of the opinion that it isn't authorized, after reading a US Cort of Federal claims case***, where the judge essentially said that the D-B legislation all requires competitive acquisition procedures for design-build. Even though the SATOC or a JOC holder may have been selected on a competitive basis, individual orders are non-competitive. The Corps doesn't allow sole source 8(a) A-E contracts because of the Brooks Act restrictions. I'm also of the opinion that a sole source 8(a) D-B contract isn't allowed for the same reason, plus not being a specifically authorized process, per 36.104.

JOC job orders are non, competitive and JOC doesn't use the 2 phase method to select the JOC contractor. However - there may be a possibility that 10 USC could cover O&M funded design-build minor construction. I'd have to do some more reading of the definition of construction for that. However - can job orders be issued non-competitively, even though the contract was competitively awarded?

*!0 USC 2801 (d) says that 10 U.S.C. ?? 2801 et seq. (other than sections 2830, 2835, and 2836 of Chapter 169 [10 U.S.C. ?? 2830, 2835, 2836]) does not apply to the Coast Guard or to civil works projects of the Army Corps of Engineers.

** The 2 phase D-B process is authorized by 10 U.S.C. 2305a for Military Construction and Family Housing or 41 U.S.C. 253m for other agencies, including Coast guard and those Civil Works projects by the Corps of Engineers.

***The Court of Federal Claims decision was Fluor Enterprises, Inc., v. the US, No: 00-207 C, March 24, 2005.