Authorized Leave Under a T&M type SubK

[ji20874]

here_2_help,

I agree with you that non-work hours such as leave (including excused absence) may be charged to an indirect account, but I'm not convinced yet that there is a basis for a contract modification to adjust the instant contract's hourly rate.  The original poster hasn't described the nature of (or authority for) the "order," or any terms of the contract.  So I am yet unwilling to fully agree with your approach.

[Retreadfed]

On ‎11‎/‎19‎/‎2018 at 5:08 PM, Shawn said:

Subcontractor employees were sent home early given safety/health related concerns with the surrounding air quality. Such circumstance were no fault of the Subcontractor in which they complied with the order received based upon our direction. 

ji, it seems the prime directed the sub to send its employees home.  Based on the terms of the subcontract, this direction may create an obligation on the part of the prime to compensate the sub.  However, we have no information concerning what, if any, role the government played in this decision.  Therefore, we have no information upon which to even venture a guess as to the government's liability to the prime for any compensation the prime provided the sub in this circumstance.

[ji20874]

1 hour ago, Retreadfed said:

However, we have no information concerning what, if any, role the government played in this decision.  Therefore, we have no information upon which to even venture a guess as to the government's liability to the prime for any compensation the prime provided the sub in this circumstance.

I agree -- that's what I've been saying from the beginning.

[joel hoffman]

On ‎11‎/‎21‎/‎2018 at 11:05 AM, ji20874 said:

I agree -- that's what I've been saying from the beginning.

I agree, too - from the beginning.

From the limited information available, my gut instinct is that the govt KO would be going beyond the terms of the contract and his/her authority to agree to reimburse the prime for hours not worked by the sub and for the prime directing its sub to send the workers home early. The job site was deemed unsafe by the prime due to smoke and fumes from the wildfire - an Act of God. 

It probably would have been an OSHA violation to require them to work under unsafe conditions. There could have been a negligent liability created had any worker been sickened or physically impaired by remaining on the job under the conditions. I’m quite certain that contracts contain certain requirements for safety that wouldn’t provide for the employer to require a worker to be subjected to unsafe or unhealthy work conditions.

On top of all that the hourly unit rates include an allowance for profit . The KO would be paying unearned profit. 

In actuality, an allowance for profit usually includes some risk. “Profit” is what is left after subtracting all costs. The contract was structured for some risk allocation due to causes beyond the control of either party. 

The KO has a responsibility to comply with the terms and conditions and established risk allocation in the contract not act as Santa Claus or Santa “Clause”.

EDIT - ADD: I suggest that Santa “Clause” go back to the North Pole, read the contract, understand the risk allocations in a fixed price contract when encountering unsafe working conditions due to an Act of God.  

And Santa sure as heck shouldn’t pay the hourly rate for hours not worked, which includes an allowance for profit and allocated risk.

Remembe that profit isn’t guaranteed. The contractor’s contract unit rates, including “profit” ,  should have considered the risks allocated to the company in the contract. 

 

[joel hoffman]

The law actually prohibits the contractor or its subs from performing the services in building or surrounding s or under working conditions that are hazardous or dangerous to the health or safety of service employees engaged to furnish the services.
 

Quote

 

29 CFR Part1925. SAFETY AND HEALTH STANDARDS FOR FEDERAL SERVICE CONTRACTS

Paragraph 1925.1 Scope and application.

“(a) The McNamara-O'Hara Service Contract Act of 1965 ( 79 Stat. 1034,  41 U.S.C. 351, et seq.) requires that every contract entered into by the United States or the District of Columbia in excess of $2,500 (except as provided in section 7 of the Act), the principal purpose of which is to furnish services in the United States through the use of service employees, must contain, among other provisions, a stipulation that “no part of the services covered by this Act will be performed in buildings or surroundings or under working conditions, provided by or under the control or supervision of the contractor or any subcontractor, which are unsanitary or hazardous or dangerous to the health or safety of service employees engaged to furnish the services.” This part 1925 expresses certain minimum safety and health standards which will be applied in the administration and enforcement of the Act to determine whether services covered by the Act are being, or have been, performed in compliance with its safety and health requirements. “

 

There is no "change" to the contract. Performance was delayed due to a Forest Fire, which,. in the wise opinion of the prime contractor, created unsafe or hazardous working conditions for the employees.  Unless there is something else in the contract, I doubt that either the government or the prime are liable to the subs for any costs due to the lost time.  None of the parties created the conditions. All parties might be liable for sickness or injuries to employees, had they required the employees to remain on the job. 

In the event that the contract is missing the appropriate clause, then the Christian Doctrine would likely apply by operation of law (mandatory requirement and serves the public interest). 

The Clause in both the prime and subcontract at FAR 52.249-14 Excusable delays, permits a schedule adjustment but not a price adjustment.
 

Quote

 

Excusable Delays (Apr 1984)

(a) Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of these causes are (1)acts of God or of the public enemy, (2)acts of the Government in either its sovereign or contractual capacity, (3)fires, (4)floods, (5)epidemics, (6)quarantine restrictions, (7)strikes, (8)freight embargoes, and (9)unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor. “Default” includes failure to make progress in the work so as to endanger performance.

(b) If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be deemed to be in default,- unless-

(1) The subcontracted supplies or services were obtainable from other sources;

(2) The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from the other source; and

(3) The Contractor failed to comply reasonably with this order.

(c) Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the Government under the termination clause of this contract.

(End of clause)

 

The clause covers fires and Acts of God (runaway forest fire) or, if you are an Atheist,  simply "fires".