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Matt_mcginn

Submittals - Design Build Construction

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Polling the construction KO's out there.

1) Do contracting officers in the agencies you work in, always receive the submittals, obtain Technical Gov't Rep. review and then approve/return to the contractor? In the USACE's Contract Administration guide found at: http://www.hnd.usace.army.mil/chemde/cap/chp9.pdf

the Resident Engineer, as the COR, signs all transmittal sheets. What if the contract specifies the contracting officer as the Government's approval authority?

2) Are there certain submittals which follow the contracting officer approval process above, but others that do not? For instance, construction submittals (i.e. safety plan, slump test, lab results) which are obviously reviewed by the technical team?

3) How do contracting officers out there handle the situation of variances? UFGS 01 33 describes these and the basis is the contractor submitting substitutions for specific types of materials required by the contract. If submittals are not approved by the contracting officer, it seems there might be a situation where a variance is constructively approved, without contracting officer involvement whatsoever.

Interested to hear how contruction KO's have handled this and set things up on new contracts at the Pre-Con.

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Polling the construction KO's out there.

1) Do contracting officers in the agencies you work in, always receive the submittals, obtain Technical Gov't Rep. review and then approve/return to the contractor? In the USACE's Contract Administration guide found at: http://www.hnd.usace.army.mil/chemde/cap/chp9.pdf

the Resident Engineer, as the COR, signs all transmittal sheets. What if the contract specifies the contracting officer as the Government's approval authority?

2) Are there certain submittals which follow the contracting officer approval process above, but others that do not? For instance, construction submittals (i.e. safety plan, slump test, lab results) which are obviously reviewed by the technical team?

3) How do contracting officers out there handle the situation of variances? UFGS 01 33 describes these and the basis is the contractor submitting substitutions for specific types of materials required by the contract. If submittals are not approved by the contracting officer, it seems there might be a situation where a variance is constructively approved, without contracting officer involvement whatsoever.

Interested to hear how contruction KO's have handled this and set things up on new contracts at the Pre-Con.

I am a former ACO and Division Level Chief of Contract Administration for the Corps of Engineers. I'm TDY this week and can't locate the clause in our USACE contracts that also defines the term "Contracting Officer" (PCO, here) as an Authorized Rep of the Contracting Officer (COR) acting within their authority, which is essentially the same definition of Contracting Officer as in FAR 2.101. We provide notice to the Contractor, either in the contract or by letter, who the assigned COR is.

We have an Administrative Contracting Officer (ACO) assigned to each contract with the authority to act as COR and to modify the contract under several clauses, within their authority level. This letter of assignment is also provided to the Contractor.

A COR cannot approve a change to the contract in a submittal action. That is reserved for the ACO or PCO.

For design-build contracts, we have adapted the Submittals Section 01 33 00 to cover design-build specific submittal procedures, which are vastly different than the construction contract submittal process. This includes proposed variances to the accepted design (we generally don't "approve" designs). We have developed a Special Contract requirement covering the process for a proposed variance (which we refer to as a "proposed deviation"). There are two classifications of variances/deviations from the accepted design:

After technical approval of the Contractor's Designer of Record (DOR), the COR may concur with proposed deviations to the accepted design that do not change the contract, which consists of the Contractor's accepted design proposal and the RFP terms, including any amendments.

Both the Contractor's DOR and the ACO/PCO must approve any proposed deviation that changes either the accepted proposal or the RFP.

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Polling the construction KO's out there.

1) Do contracting officers in the agencies you work in, always receive the submittals, obtain Technical Gov't Rep. review and then approve/return to the contractor? In the USACE's Contract Administration guide found at: http://www.hnd.usace.army.mil/chemde/cap/chp9.pdf

the Resident Engineer, as the COR, signs all transmittal sheets. What if the contract specifies the contracting officer as the Government's approval authority?

2) Are there certain submittals which follow the contracting officer approval process above, but others that do not? For instance, construction submittals (i.e. safety plan, slump test, lab results) which are obviously reviewed by the technical team?

3) How do contracting officers out there handle the situation of variances? UFGS 01 33 describes these and the basis is the contractor submitting substitutions for specific types of materials required by the contract. If submittals are not approved by the contracting officer, it seems there might be a situation where a variance is constructively approved, without contracting officer involvement whatsoever.

Interested to hear how contruction KO's have handled this and set things up on new contracts at the Pre-Con.

Matt, I was re-reading your post and it struck me as rather presumptuous of you to assert that only a "Contracting Officer" has the training or ability to approve construction or design-build submittals or to know whether or not you are approving a "variance", resulting in a mod to the contract. It is especially amusing that you state that you first obtain "Technical Gov't Rep." review before approving the submittal.

You insinuated that a non KO will probably approve a variance, resulting in a constructive change. There are actually non-1102, highly trained personnel out there who can interpret contracts, using the general rules of contract interpretation and can determine whether or not a submittal meets the technical, administrative (e.g., Buy American act) contract requirements) and other contractual requirements, can approve conforming submittals, disapprove non-conforming submittials and can get the ACO or PCO to take appropriate action on variances. Our general rules are straightforward. The authorized COR can review and approve conforming submittals, disapprove non-conforming submittals and is instructed to send a variance that may be desirable to the ACO and/or KO for approval. The COR involves Office of Counsel, the PCO, Engineering and others when necessary, in making decisions and recommendations for the appropriate action to take on submittals.

I don't remember everything that I wrote in the link that you provided and can't follow it on this particular Internet connection. It is the Contract Administration Plan for the Corps' Huntsville Engineering and Support Center's Chemical Demilitarization Directorate. The Chm-Demil Program is a Category I. DoD Major Defense Acquisition Program. The CA Plan was adapted under my supervision and involvement many years ago from the Mobile District Contract Administration Manual. I was the principle author and editor of that Manual back in the early 1990's. I rewrote and expanded the original Mobile CAB Manual , ehich had been updated a couple times by others since back to at least the 1973 time frame. It has been adapted by many other Corps Districts over the years. That Manual has since been updated by my successors.

If your organization is limited to only the KO approving construction submittals, then I'd say that either your KO's don't have enough to do otherwise or conversely, I can see why they are overworked, doing stuff that others should be able to be trained to do.

Sorry about being a grouch here. But it is ludicrous to assume that only an 1102 Contracting Officer is qualified to perform construction submittal reviews and actions. I, and other professional engineers (and registered architects) like me and before me, have been performing routine and non-routine contract admin functions for many more years than DAWIA has been in existence. I was writing, bidding, negotiating and administering construction contracts , mods , and claims long before I came to work for the Corps of Engineers and extensively since then and yes - others and I were and are fully qualified DAWIA Level III with enough business credits to qualify as COR's, Contracting Officers/ACO's and/or 1102's.

P.S., our Directorate's Resident Engineers were warranted Contracting Officers, assigned as ACO's in addition to being COR's at the time the Contract Admin Plan iyou linked to was written.

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Matt, I was re-reading your post and it struck me as rather presumptuous of you to assert that only a "Contracting Officer" has the training or ability to approve construction or design-build submittals or to know whether or not you are approving a "variance", resulting in a mod to the contract. It is especially amusing that you state that you first obtain "Technical Gov't Rep." review before approving the submittal.

You insinuated that a non KO will probably approve a variance, resulting in a constructive change. There are actually non-1102, highly trained personnel out there who can interpret contracts, using the general rules of contract interpretation and can determine whether or not a submittal meets the technical, administrative (e.g., Buy American act) contract requirements) and other contractual requirements, can approve conforming submittals, disapprove non-conforming submittials and can get the ACO or PCO to take appropriate action on variances. Our general rules are straightforward. The authorized COR can review and approve conforming submittals, disapprove non-conforming submittals and is instructed to send a variance that may be desirable to the ACO and/or KO for approval. The COR involves Office of Counsel, the PCO, Engineering and others when necessary, in making decisions and recommendations for the appropriate action to take on submittals.

I don't remember everything that I wrote in the link that you provided and can't follow it on this particular Internet connection. It is the Contract Administration Plan for the Corps' Huntsville Engineering and Support Center's Chemical Demilitarization Directorate. The Chm-Demil Program is a Category I. DoD Major Defense Acquisition Program. The CA Plan was adapted under my supervision and involvement many years ago from the Mobile District Contract Administration Manual. I was the principle author and editor of that Manual back in the early 1990's. I rewrote and expanded the original Mobile CAB Manual , ehich had been updated a couple times by others since back to at least the 1973 time frame. It has been adapted by many other Corps Districts over the years. That Manual has since been updated by my successors.

If your organization is limited to only the KO approving construction submittals, then I'd say that either your KO's don't have enough to do otherwise or conversely, I can see why they are overworked, doing stuff that others should be able to be trained to do.

Sorry about being a grouch here. But it is ludicrous to assume that only an 1102 Contracting Officer is qualified to perform construction submittal reviews and actions. I, and other professional engineers (and registered architects) like me and before me, have been performing routine and non-routine contract admin functions for many more years than DAWIA has been in existence. I was writing, bidding, negotiating and administering construction contracts , mods , and claims long before I came to work for the Corps of Engineers and extensively since then and yes - others and I were and are fully qualified DAWIA Level III with enough business credits to qualify as COR's, Contracting Officers/ACO's and/or 1102's.

P.S., our Directorate's Resident Engineers were warranted Contracting Officers, assigned as ACO's in addition to being COR's at the time the Contract Admin Plan iyou linked to was written.

Joel,

I just read your reply from over a month ago. There was no insinuation written in my post - I reject your grouchiness too. :-)

I was asking the question because I really do not know what is happening currently at construction offices. In my office (Navy), no submittals are received by the ACO, with the exception of preconstruction admin (Bonds, Insurance). Wrt D-B, the Final Design is approved/accepted, signed by the Resident Engineer and then forwarded to the ACO for modification incorporating the design into the contract. A good friend of mine, in an Airforce construction office, says that the ACO receives ALL submittals, farms them out to the respective technical rep. with a buck slip, and then monitors to return within the prescribed time. Go figure. Recognize too that in D-B many submittals are Gov't surveillance only.

I agree with you that PE's and Registered Architects are skilled and very capable in the contruction contract administration arena. I have met a lot of engineers who have business sense and a good handle on case law and precedent, and they make the decisions when it comes to every real contractual action on a project. In fact, many in my organization have snatched the responsibilities defined under the acquisition system definition of "Contracting Officer". For example, the UFGS have the term scattered throughout and it seems to lose its meaning. This has led to some confusion, in my opinion, about what position "Contracting Officer" holds in the organization. I am sure Vern Edwards has a clear idea about this issue, and possibly others on this forum, but they are not in positions of power that set policy and organizational structure. I see contracting taking a back seat way too much. On the other hand, there are many 1102's I have come across who are perfectly happy to not have to deal with the contractor; negotiate, bargain, make fast business decisions, push the contracting processes. Instead, an 8-5 gig with little hassle or debate throughout the day is their preferred course.

So, from what you stated, you are an Engineer, with Level III DAWIA in contracting, and a former Division Level Chief of Construction? I understand the ACOE is set up in this way across the enterprise - ACO usually means an engineer who is cross-trained and fully certified to execute Contracting Officer duties in accordance with appointment from the contracting authority.

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Joel,

I just read your reply from over a month ago. There was no insinuation written in my post - I reject your grouchiness too. :-)

I was asking the question because I really do not know what is happening currently at construction offices. In my office (Navy), no submittals are received by the ACO, with the exception of preconstruction admin (Bonds, Insurance). Wrt D-B, the Final Design is approved/accepted, signed by the Resident Engineer and then forwarded to the ACO for modification incorporating the design into the contract. A good friend of mine, in an Airforce construction office, says that the ACO receives ALL submittals, farms them out to the respective technical rep. with a buck slip, and then monitors to return within the prescribed time. Go figure. Recognize too that in D-B many submittals are Gov't surveillance only.

I agree with you that PE's and Registered Architects are skilled and very capable in the contruction contract administration arena. I have met a lot of engineers who have business sense and a good handle on case law and precedent, and they make the decisions when it comes to every real contractual action on a project. In fact, many in my organization have snatched the responsibilities defined under the acquisition system definition of "Contracting Officer". For example, the UFGS have the term scattered throughout and it seems to lose its meaning. This has led to some confusion, in my opinion, about what position "Contracting Officer" holds in the organization. I am sure Vern Edwards has a clear idea about this issue, and possibly others on this forum, but they are not in positions of power that set policy and organizational structure. I see contracting taking a back seat way too much. On the other hand, there are many 1102's I have come across who are perfectly happy to not have to deal with the contractor; negotiate, bargain, make fast business decisions, push the contracting processes. Instead, an 8-5 gig with little hassle or debate throughout the day is their preferred course.

So, from what you stated, you are an Engineer, with Level III DAWIA in contracting, and a former Division Level Chief of Construction? I understand the ACOE is set up in this way across the enterprise - ACO usually means an engineer who is cross-trained and fully certified to execute Contracting Officer duties in accordance with appointment from the contracting authority.

Matt, our RE's also farm out submittals when necessary, similar to the Air Force, It depends upon the level of technical expertise in the RE office.

I'm curious. Why does NAVFAC incorporate the design into the contract? For instance, what happens if there is a design error or omission in the design-builder's design that has to be fixed? Does someone initiate an engineering change, change order (or whatever term NAVFAC uses for a change to the contract)? How does it get incorporated into the design or contract? If it costs more to fix, does the government pay? Time extensions, etc.? Is there any room for Contractor flexibility in the final design?

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Joel,

I just read your reply from over a month ago. There was no insinuation written in my post - I reject your grouchiness too. :-)

I was asking the question because I really do not know what is happening currently at construction offices. In my office (Navy), no submittals are received by the ACO, with the exception of preconstruction admin (Bonds, Insurance). Wrt D-B, the Final Design is approved/accepted, signed by the Resident Engineer and then forwarded to the ACO for modification incorporating the design into the contract. A good friend of mine, in an Airforce construction office, says that the ACO receives ALL submittals, farms them out to the respective technical rep. with a buck slip, and then monitors to return within the prescribed time. Go figure. Recognize too that in D-B many submittals are Gov't surveillance only.

I agree with you that PE's and Registered Architects are skilled and very capable in the contruction contract administration arena. I have met a lot of engineers who have business sense and a good handle on case law and precedent, and they make the decisions when it comes to every real contractual action on a project. In fact, many in my organization have snatched the responsibilities defined under the acquisition system definition of "Contracting Officer". For example, the UFGS have the term scattered throughout and it seems to lose its meaning. This has led to some confusion, in my opinion, about what position "Contracting Officer" holds in the organization. I am sure Vern Edwards has a clear idea about this issue, and possibly others on this forum, but they are not in positions of power that set policy and organizational structure. I see contracting taking a back seat way too much. On the other hand, there are many 1102's I have come across who are perfectly happy to not have to deal with the contractor; negotiate, bargain, make fast business decisions, push the contracting processes. Instead, an 8-5 gig with little hassle or debate throughout the day is their preferred course.

So, from what you stated, you are an Engineer, with Level III DAWIA in contracting, and a former Division Level Chief of Construction? I understand the ACOE is set up in this way across the enterprise - ACO usually means an engineer who is cross-trained and fully certified to execute Contracting Officer duties in accordance with appointment from the contracting authority.

Matt, our RE's also farm out submittals when necessary, similar to the Air Force, It depends upon the level of technical expertise in the RE office. Most are ACO's. Some might work for an Area Engineer, who may be the ACO. We occasionally have an 1102 ACO in the field office, more likely on cost contracts.

I'm curious. Why does NAVFAC incorporate the design into the contract? For instance, what happens if there is a design error or omission in the design-builder's design that has to be fixed? Does someone initiate an engineering change, change order (or whatever term NAVFAC uses for a change to the contract)? How does it get incorporated into the design or contract? If it costs more to fix, does the government pay? Time extensions, etc.? Is there any room for Contractor flexibility in the final design?

Yes, I was an ACO.

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Matt, our RE's also farm out submittals when necessary, similar to the Air Force, It depends upon the level of technical expertise in the RE office. Most are ACO's. Some might work for an Area Engineer, who may be the ACO. We occasionally have an 1102 ACO in the field office, more likely on cost contracts.

I'm curious. Why does NAVFAC incorporate the design into the contract? For instance, what happens if there is a design error or omission in the design-builder's design that has to be fixed? Does someone initiate an engineering change, change order (or whatever term NAVFAC uses for a change to the contract)? How does it get incorporated into the design or contract? If it costs more to fix, does the government pay? Time extensions, etc.? Is there any room for Contractor flexibility in the final design?

Yes, I was an ACO.

Joel,

Ok - so the last statement of my previous post accurately describes the way ACOE's operates. That is interesting - I would be very interested to learn more about the ACOE's development plan. Do they take Engineers and then train them in CON classes to Level 1, 2 and 3? In NAVFAC all ACO and warrant authority is with an individual occupying an 1102 or a CEC officer billet. Warrant authority being within Acquisition then, civilian engineers are appointed as Contracting Officer's Authorized Representatives (COAR) and that authority is delegated by the CCO. This means having the authority to negotiate agreements on in-scope changes up to a certain threshold (capped at $100k) and processing the changes in the End To End procurement systems (eContracts, FIS and SPS).

With regard to your question about final design, NAVFAC accepts the final design and incoporates it into the contract to formally establish the agreed upon design and aims to not allow the contractor to re-think what they've designed as they get to the end of the project. Many disputes were occuring when the contractor would argue after design that they had made an error which exceeded the RFP and tried to "strip out" that work. Under the NAVFAC incorporation of final design clause, the contractor is not relieved from errors or ommissions and maintains the risk to deliver the project in accordance with an order of precedence clause in the contract. Notwithstanding this NAVFAC procedure, there are constant contract administration battles that start after award and continue well after BOD. I am sure you have fought many of the same battles to ensure the Government's interests are upheld.

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Joel,

Ok - so the last statement of my previous post accurately describes the way ACOE's operates. That is interesting - I would be very interested to learn more about the ACOE's development plan. Do they take Engineers and then train them in CON classes to Level 1, 2 and 3? In NAVFAC all ACO and warrant authority is with an individual occupying an 1102 or a CEC officer billet. Warrant authority being within Acquisition then, civilian engineers are appointed as Contracting Officer's Authorized Representatives (COAR) and that authority is delegated by the CCO. This means having the authority to negotiate agreements on in-scope changes up to a certain threshold (capped at $100k) and processing the changes in the End To End procurement systems (eContracts, FIS and SPS)....

- Matt, I believe that an ACO who is an engineer or architect in USACE must have the same Defense Acquisition Workforce Improvement Act qualifications and training that an ACO who is an 1102 must have to get the same level KO warrant. Level II DAU certification is required, although many obtain Level III certification. Those of us who were GS14 and above were also members of Army Acquisition Corps. The 13's and below were usually Acquisition Corps Eligible, if they aspired to higher level positions. The mandatory refresher training requirements are also applicable. Plus, all ACO's and COR's must take yearly Appropriations Law and Ethics, etc. training. In addition, the ACO's who are engineers or architects have additional technical training and will have probably had construction contract specific training. Then there is the required training for those who are supervisors.

If the ACO is a Resident or Area Engineer, he/she must also be a Registered Architect or licensed Professional Engineer and keep up with any state required continuing education requirements. Most states require 4 years of engineering or architectural experience, in addition to the various pre-PE licensing levels and pass all the licensing tests. There is a move on within the college community to change to a five year curriculum for future engineers and architects.

I haven't kept up with the latest DAWIA quals but a KO (including ACO) must possess a Bachelor's degree and have at least 24 semester hours of business curriculum from an accredited institution, plus whatever number of years experience in contracts is required (I don't remember how many). Our ACO's have KO warrants with certain authorities, including modification authority on FFP construction contracts under specific clauses up to various limits. I think the maximum mod authority is still $500k, unless it has been adjusted for inflation. The ACO's duties also include that of Contracting Officer's Representative (COR), although there can also be separate COR's, who aren't ACO's.

It depends upon individual District policy, but as contract administrator's, we negotiated modifications, claims and even new sole source negotiated contracts. Pre-negotiation objectives and settlements were subject to the ACO's approval or subject the KO's approval, for actions which exceeded the ACO's authority. The ACO or PCO would review and approve pre-negotiation objectives and post-negotiations packages, as applicable. In addition, there was legal coordination and review at various monetary levels and for claims. Some Districts centralize negotiations of larger actions, many don't. Some of us also ran competitive source selections under the PCO's supervision.

I joined civil service with USACE in 1980, after four years outside engineering and construction experience and after my Air Force civil engineering time. According to NAVFAC personnel that I spoke with in early USACE training classes, there were no NAVFAC ACO's at all in the field. I believe that every modification had to go back to Washington DC. for at least KO execution. I don't know who negotiated them.

Back then, our KO's for construction contracting were all Military Engineer Officer's (the District Engineer and/or their Deputies). The field offices had "Resident Contracting Officer's" (this was predecessor to the ACO), who were engineer's or architects with certain required contract administration training. The Contracting shop folks were the KO's for service, supply and (I think) A-E contracts. This all changed with DAWIA, when construction PCO responsibility went to Contracting and RCO's became ACO's with DAWIA training. New ACO's had to meet full DAWIA qualifications, while most of the existing RCO's met the Grandfathering criteria but still had to take the DAWIA training.

I thought that the USACE-wide contract training was better than most of the required DAWIA courses back in the 1980's and 1990's. I'm probably prejudiced, because I taught some of the USACE-wide training, like Cost Analysis, Estimating for Modifications and Claims, Contract Admin., local contract admin courses and seminars, etc. I know that our PCO's are more qualified now than "back in the day" and we seem to have less claims with our current ACO Cadre, so I suppose that DAWIA seems to be working.

I know that there are a currently LOT more qualifications to be an ACO/Resident Engineer now, between DAWIA and licensing requirements, than years ago. Fortunately, I was a PE prior to my employment with USACE. I will say though that my RE's and Area Engineers were highly qualified, experienced engineers and contract administrators/RCO's/COR's.

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Do they take Engineers and then train them in CON classes to Level 1, 2 and 3?

I often have engineers from the ACOE in my class that are pursuing an ACO warrant, but never any from NAVFAC.

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Joel,

...With regard to your question about final design, NAVFAC accepts the final design and incoporates it into the contract to formally establish the agreed upon design and aims to not allow the contractor to re-think what they've designed as they get to the end of the project. Many disputes were occuring when the contractor would argue after design that they had made an error which exceeded the RFP and tried to "strip out" that work. Under the NAVFAC incorporation of final design clause, the contractor is not relieved from errors or ommissions and maintains the risk to deliver the project in accordance with an order of precedence clause in the contract. Notwithstanding this NAVFAC procedure, there are constant contract administration battles that start after award and continue well after BOD. I am sure you have fought many of the same battles to ensure the Government's interests are upheld.

Matt, in USACE, we developed a contract clause and teach that the contract consists of the terms of the RFP, as amended through award, and the Accepted proposal. The final design documents, developed after award, are contract deliverables, which must conform to the contract requirements (i.e., the RFP and the accepted proposal). In case of conflict between the contract documents, the order of precedence is 1) anything within the accepted proposal which specifically exceeds the RFP requirements (must still meet the RFP requirements) becomes the new minimum requirement, 2) the minimum requirements of the of the RFP and 3) the remainder of the accepted proposal. The deliverables are not part of the contract but must conform to the contract. This does leave some flexibility for contractor adjustments during construction.

Designs aren't perfect, plus sometimes the designer adds features which aren't contractually required, and/or aren't available, and/or available within the design-builder's budget, etc. While many of the non-contractual "niceties" do get incorporated, some might be have to be sacrificed or modified during construction. The design details weren't specifically part of the specific contract bargain at contract formation.

We have also developed a clause that puts some contractual controls on deviations from the accepted design. The contractor's designer of record (DOR) must review and technically approve all proposed deviations and government concurrence is necessary prior to adoption. The design-builder must also track all approved deviations in the design documents and the as-built documentation The government reserves the right to non-concur if the deviation prejudices or otherwise impacts the government, such as interior design finishes, where the government has ordered the furnishings and fixtures in accordance with the accepted design. Any proposed deviation from the the accepted contract proposal or the RFP requires both DOR and Government approval and a contract modification. The Government doesn't have to agree to the change to the contract. The government won't pay for any increased cost of a deviation. Decreases are subject to a credit change.

Yes, we have some battles. But, we have found that the above ground rules seem to work pretty well, when understood and applied. When we have good contractor and government teams and with implementation of our partnering processes, we seem to be able to work all or most of those issues out.

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