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We have a mechanical subcontractor that is a consistent problem and I was wondering if we can ban them from campus. 

In the latest two incidents, we had drawings that showed chilled water being connected to chillers. There was a domestic water connection alongside the chilled water. The customer states the mechanical sub knows not connect chilled water to the chillers because the chemicals damage the unit. They do this for living. Does the installer have any obligation to notify someone before installing equipment improperly because there was an error in the drawing?

The contractor has also created several floods around campus due to faulty installation and improperly supporting pipes. They are qualified on paper when reviewing proposals, but their craftsmanship and professionalism are abysmal. Any thoughts?

 

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Please clarify if this is a federal government construction contract. You referred to the “campus”. 

 

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If this is a federal construction contract,  generally speaking, directly banning a subcontractor from the job site would be interfering with the prime-sub contractual relationship and would usurp the contractor’s role,  responsibilities and control of the work. Federal construction contracts make the contractor responsible for material and workmanship (see, for instance clause 52.236-5, Material and Workmanship), for direct supervision of the work (see, for instance clause 52.236-6, Superintendence by the Contractor), and for quality control and inspection of the work to ensure that it meets the contract requirements (see for instance clause 52.246-12, Inspection of construction and any other more specific contract quality control requirements ).

The government must require and importantly - allow the prime contractor to perform its responsible roles for the quality and safety of the work.  If the contractor isn’t doing that, the government should be notifying the contractor of failures or deficiencies in its superintendentence, inspection and quality control system. 

Pursuant to the Permits and Responsibilities clause, the Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable.  

But that does not extend to directly barring a sub from the campus. 

One of our area engineers (an ACO) once directed the contractor to fire a subcontractor. The government ended up being responsible for the cost and time impacts as a constructive change. 

If the problems or poor workmanship or supervision can be attributed to specific personnel, the KO may be able to direct their removal and replacement or at least some corrective action to improve their performance, at the risk of removal. 

As for the drawing error, if it is the government’s design, the government is responsible for the defective design error.  However, if the defect is patent or obvious to those who know that it is wrong, then the contractor or it’s sub should normally promptly notify the KO and ask for direction, to minimize impacts to the job. But a change order would be required to correct the error. Had the sub or contractor notified the government of the error, it might have been little or no cost to correct it. Impact costs or delays caused by  a failure to notify the government of a patent defect, might not be considered “reasonable costs” or reasonable delays. Depends upon the circumstances. The contractor and government both have some good faith responsibilities. 

The above is “the short answer”. There are entire courses on contractor quality control and government quality assurance management systems and procedures. 

Not enough context here to fully describe other possible actions available to the government in the event of failures in the QC and supervision of the work. If it is seriously deficient to the point where it endangers property or personnel, or will seriously affect the rest of the work, the KO might be able direct that the contractor stop all directly affected work until the contractor fixes its QC and supervisory processes. It should not be directed as a “Suspension of Work” but as a failure to comply with the contract requirements for performance of the work in a skillful manner and to supervise and inspect the work. Avoid any language that would refer to “suspending the work” or to a “suspension of work”. The “Suspension of Work” clause is written for suspending the work for the convenience of the government, not for enforcement of contract requirements. 

 

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  • report the prime's failures in CPARS, as sub's failures are prime's failures
  • evaluate  the prime's subcontracting approach (if not sealed bid)
  • debar the subcontractor

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There are numerous possible oversight and QA actions available. I might advise telling the prime, as part of its supervision and inspection roles to look for root causes of the defective work of its subcontractor and to propose a corrective action plan.

You can also document and put the contractor on notice of its performance problems , including interim performance evaluation …  There are procedures that would have to be followed.

As for ji's suggestions, remember that there are procedures that must be followed to be able to implement and defend the government's course of action.

I am assuming that the contract in question is on-going.

Is it completed? If so, then other government actions and possibilities exist to avoid using this subcontractor in the future which require separate discussion.

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Thank you, sir.

I would say it is a patent error, and the sub knew full-well not to connect to chilled water. The contract was completed 6mos. ago and we just identified the problem. The GC isn't going to voluntarily replace a chiller their sub knowingly installed incorrectly. I believe the only recourse may be litigious. 

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Thanks for the clarification.  The work is complete.  Your original question then concerns avoiding participation by this subcontractor on future contracts.

I'm sorry.  My above posts assumed that the work is on-going.

If the government is using best value acquisition methods, I would include an evaluation factor or subfactor to evaluate the experience and past performance of key subcontractors, especially mechanical subcontractors. I would definitely document the performance of the prime (during the work) and its sub.  If the performance evaluation is not final, I would document it there - of course, the prime may not agree.  How all that is done is beyond the scope of my answer here.

 

As for the current problem,  I don't know whether a prime contractor can be held liable under the warranty clause for a patent defect in the design that the contractor's sub should have brought to the prime's attention and the prime should have brought to the government's attention. It requires some legal investigation and determination. At least the problem has been identified during the warranty period. 

On the other hand, there may be A/E liability for the design error,  which caused the failure of the chiller unit.

Was there an A/E contract for the design?  The A/E contract clause 52.236-23, Responsibility of the Architect-Engineer Contractor, establishes the standard of care for the /E design. 

It may be possible to establish a case of A/E liability under this clause, but there are some rigorous efforts and standards involved in making the determination and successfully establishing A/E liability.  

I don't know what your role or expertise is, what organization you work for.  Nor do I know what degree of expertise is available in your organization and/or any other organization that provided the design and construction contract to accomplish the above investigations and actions concerning recovery of costs to replace the chiller and replumb the connections. 

As a minimum, an A/E is required to provide any necessary redesign due to a design error under the above clause.

 

 

 

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I will be out for the rest of the day, so might not see other posts here until later.

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Regarding the immediate problem:  If a contractor, through its subcontractor, knowingly connected a chiller in a manner that it knew was improper and that would lead to failure, it might be possible to establish some responsibility - you need some legal advice.  Since it has been discovered during the warranty period it might not matter whether the ultimate defective installation is a latent defect, known but not disclosed by the contractor or its sub.  All that and the possibility of A/E liability will require some investigation by competent personnel.

Of course, if this is a design-build contract, then it should be a slam dunk - the design-builder is most likely responsible for fixing the design and replacing the chiller, in this case under the Warranty of Construction clause and under any other similar contract requirement. 

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Vern, I am a CO with Architect of the Capitol. I'm relatively new to construction and AE contracts. We have several architects, engineers, and construction managers in the agency. They mostly review CDs prepared be AE contractors, such as this one.   

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Torrey,  does anyone in your organization  have any experience with architect-engineer liability or with the legal implications or defenses to the Spearin Doctrine? 

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Never mind, Torey. You did not ask for advice concerning post acceptance problems.

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Guest Vern Edwards
1 hour ago, Torey said:

Vern, I am a CO with Architect of the Capitol. I'm relatively new to construction and AE contracts. We have several architects, engineers, and construction managers in the agency. They mostly review CDs prepared be AE contractors, such as this one.   

Okay, everyone should understand that the FAR System does not apply to the Architect of the Capitol, although it relies on the FAR to some extent:

Quote

The procurement authority for the AOC is established by statute codified at 41 U.S.C. § 6102(e), 41 U.S.C. § 3904(g), and see generally, 2 U.S.C. Chapter 28 (Architect of the Capitol), as amended. As a Legislative Branch agency, the AOC is not authorized to follow the Federal Acquisition Regulations (FAR), however, the AOC does incorporate certain FAR clauses and provisions in its solicitations and follows the regulatory guidance found in the FAR to the maximum extent possible. On March 31, 2014, the AOC issued its first ever Contracting Manual(link is external). The manual prescribes uniform policies for the acquisition of supplies, services, construction and related services, and provides guidance to agency personnel in applying these policies and procedures. It is also a document contractors can use to better understand our acquisition processes as a legislative branch entity not subject to the FAR. 

https://www.aoc.gov/doing-business-aoc/overview

4 hours ago, Torey said:

We have a mechanical subcontractor that is a consistent problem and I was wondering if we can ban them from campus.

Torey, I am not sure what you folks in the Architect's office can and cannot do in that regard. My advice is to speak with your office's attorney. I also advise you to ignore any legal advice you are given by anyone in Wifcon Forum.

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 It may well be that any money that the architect of the capitol saves in  not been subject to the federal acquisition regulations could be spent on purchasing new chiller    Just joking. However, it would have been be nice to know upfront that we are dealing with another animal. 🤭

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Vern, you are correct on everything you said. We aren't required to use the FAR, but most of the FAR clauses are incorporated, or slightly modified, in our IDIQ contracts. I thank everyone for their responses, the provide context and although the FAR doesn't apply, legal precedence and contract law for how disputes are handled still apply. We also have in-house mechanical staff that will likely be used to correct. My main question can we ban a poor sub from campus.

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Guest Vern Edwards
21 minutes ago, Torey said:

 My main question can we ban a poor sub from campus.

I don't know the answer to that question.

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Did you know that unsatisfactory performance of one or more {sub}contracts is a basis for debarment?  If you use a clause like FAR 52.209-6 in future contracts, it might help keep the firm from getting more subcontracts.

Edited by jjj
To clarify that unsatisfactory performance of a subcontract can be a basis for debarment.

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On 8/13/2018 at 12:07 PM, jjj said:

Did you know that unsatisfactory performance of one or more contracts is a basis for debarment?  If you use a clause like FAR 52.209-6 in future contracts, it might help keep the firm from getting more subcontracts.

jjj, subcontractors aren’t normally rated separately in CPARS are they? As far as I know, the performance rating is for the prime.  

I believe that the government is limited to including a narrative about the sub’s performance. In the prime’s evaluation. 

[Edit: I seriously doubt that a narrative covering the subcontractor’s performance within the prime’s rating evaluation would justify disbarment or survive a disputed disbarment , unless perhaps the sub’s performance was so poor as to  cause the prime’s overall performance to be unsatisfactory. As I stated before, the prime is ultimately responsible to the government for the performance of its subs.

On top of that, the government’s design is defective, which could be claimed as a contributing factor. ]

The clause at 52.209-6 is only effective if the subcontractor is a firm that has been officially debarred. 

Edited by joel hoffman
I noticed that misread who I was addressing “jjj”, not “Ji”. Sorry.

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On 8/13/2018 at 3:38 PM, joel hoffman said:

Ji, subcontractors aren’t normally rated separately in CPARS are they? As far as I know, the performance rating is for the prime.  

The sub’s failure is the prime’s failure.  The sub’s failure (if uncorrected by the prime) can and should affect the prime’s CPARS report (both rating and narrative). If so, maybe that prime won’t use that sub anymore, which will contribute to the original poster’s goal.  

On 8/13/2018 at 3:38 PM, joel hoffman said:

The clause at 52.209-6 is only effective if the subcontractor is a firm that has been officially debarred. 

That’s why I introduced the clause after asking about debarment.  

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On ‎8‎/‎13‎/‎2018 at 12:35 PM, Torey said:

but most of the FAR clauses are incorporated, or slightly modified, in our IDIQ contracts.

Torey, can you point me in the right direction to find the FAR clauses that the AOC uses in its contracts?  I am familiar with the clauses that are used in simplified acquisitions, but not the clauses used in contracts that do not use simplified acquisition procedures.

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On 8/15/2018 at 9:12 AM, C Culham said:

The link should provide Torey the information and responsible offices to determine whether or not the subcontractor can be barred or banned from the campus. 

Those offices should be much better sources of information for Torey’s question than this Internet Forum. As a contracting officer, Torrey would/should be consulting with those offices.

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