Boof Posted June 3, 2013 Report Share Posted June 3, 2013 In a CPFF contract the Government assumes cost risk but isn't there a way to hold the contractor responsible for incompetent work. I thought I read somewhere that the Government takes on the cost risk but not the technical risk for performance. However, everything I can find says we are on the hook since someone was not wise enough to award this as a fixed price contract. The SOW required the building to be built to international building code. The building was not built to that code structurally or electrically. The Government did not accept the building. The Government paid the prime for 5 construction managers throughout the construction period who apparently did not enforce the contract terms with the sub-contractor. We asked the prime contractor to provide a proposal to bring the building up to code and they are charging for almost everything over again citing it was a clearly a CPFF contract and ducking any responsibility for the poor performance. It just don't seem right that they are not responsible for some of these costs. Link to comment Share on other sites More sharing options...
Don Mansfield Posted June 3, 2013 Report Share Posted June 3, 2013 Boof, Which Inspection clause was in the contract? Link to comment Share on other sites More sharing options...
Navy_Contracting_4 Posted June 3, 2013 Report Share Posted June 3, 2013 Boof, I'm with you. If the contract required blast-proof doors, for example, and the contractor bought and installed non-blast-proof doors, then aren't those costs unallowable? Link to comment Share on other sites More sharing options...
joel hoffman Posted June 4, 2013 Report Share Posted June 4, 2013 Boof, is this a design-build contract? As a minimum, it would appear that there should be NO FEE (profit) applied to rework and/or corrective design, if the contractor is responsible for the structural and electrical design. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted June 4, 2013 Report Share Posted June 4, 2013 Boof, please answer Don's question: What inspection clause (52.246-X) was in the contract? Link to comment Share on other sites More sharing options...
Boof Posted June 4, 2013 Author Report Share Posted June 4, 2013 Because the base contract is an IDIQ contract it has four inspection clauses listed in reference. 52.246-3, -4, -5, and -6. The task order has a lot more services than this construction project. The construction was added by mod. due to what they thought was urgency. Now its incomplete and tied up for months - so much for urgency. It should have been done as a fixed price construction contract in the first place but I had nothing to do with the original award. Link to comment Share on other sites More sharing options...
Don Mansfield Posted June 4, 2013 Report Share Posted June 4, 2013 Assuming the applicable inspection clause is FAR 52.246-5, Inspection of Services--Cost Reimbursement, see paragraph ( d ): If any of the services performed do not conform with contract requirements, the Government may require the Contractor to perform the services again in conformity with contract requirements, for no additional fee. When the defects in services cannot be corrected by reperformance, the Government may—(1) Require the Contractor to take necessary action to ensure that future performance conforms to contract requirements; and (2) Reduce any fee payable under the contract to reflect the reduced value of the services performed. Link to comment Share on other sites More sharing options...
brian Posted June 5, 2013 Report Share Posted June 5, 2013 ... The construction was added by mod. due to what they thought was urgency. Now its incomplete and tied up for months - so much for urgency. ... Nitpicking, but I would say that the out-of-scope Mod was made not due to urgency, but due to a fear of competition. The wrong Contractor might win, screwing everything up. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted June 5, 2013 Report Share Posted June 5, 2013 It sounds to me like some contracting office conducted an acquisition that it was not competent to conduct. Link to comment Share on other sites More sharing options...
Boof Posted June 5, 2013 Author Report Share Posted June 5, 2013 We are ensuring they do not charge any fee but it appears we are on the hook otherwise. No comment about our competency other than to say we face chaos everyday and somehow meet the mission. Looking to the future only depresses you more. Thanks all. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted June 5, 2013 Report Share Posted June 5, 2013 Looking to the future only depresses you more. That's really sad. Link to comment Share on other sites More sharing options...
wvanpup Posted June 5, 2013 Report Share Posted June 5, 2013 Boof -- I am with Navy. As a general rule, in a cost contract the cost of corrective work is allowable. It will probably be difficult, but, depending on how egregious the prime's lack of oversight was, you may be able to fashion an argument that the original costs were not reasonable and therefore not allowable. I looked at the Inspection clauses. I find it somewhat ironic that you have a construction contract but no clause for inspection of a construction contract. I also find it somewhat ironic that there are inspection clauses for fixed price and cost supply, service, and R&D contracts, but the only inspection of construction clause is for fixed price contracts. Link to comment Share on other sites More sharing options...
brian Posted June 5, 2013 Report Share Posted June 5, 2013 wvanpup, I think this contract is a "kitchen sink IDIQ" in support of an overseas contingency operation. If so, they've got no rules, and no adult supervision. The mission in Afghanistan is transferring appropriated dollars into the accounts of favored contractors. "Quality Assurance" is a section in a PWS, not something that people do. Link to comment Share on other sites More sharing options...
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