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In many federal contracts as per the instruction to offerors, during the proposal stage, the bidders are advised to send their questions related to the RFP vide 'projnet' online portal and the same is answered by the Government there itself. This online portal is accessible to all the bidders who are bidding for that project and all the bidders are submitting their offer accordingly. But not all the clarifications given to the bidders inquiry in the projnet portal are updated on the specifications or drawings through an official amendment to the RFP due to the time constraints during the bidding stage. Most of the cases the clarifications are given till the last the minute of the proposal submission. 

Now the issue here, in general, when the Contract is awarded, the clarifications given vide the projnet, during the proposal stage, are not included as part of the Contract. So,  at the time of construction, when scope dispute arises, the CO is NOT accepting the clarifications provided vide projnet during the proposal stage and demanding for the reference shown on any official amendment to the RFP or any reference from the Contract drawings or specifications.

So, it will be great, if any one confirm whether the bidders inquiry clarified during the proposal stage is part of the final contract or not?

Edited by Abdul
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36 minutes ago, Abdul said:

So,  at the time of construction, when scope dispute arises, the CO is accepting the clarifications provided vide projnet during the proposal stage and demanding for the reference shown on any official amendment to the RFP or any reference from the Contract drawings or specifications.

Can you please “clarify” what you mean by the KO is “accepting “ the clarifications and who he/she is demanding references from? 

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2 minutes ago, joel hoffman said:

Can you please “clarify” what you mean by the KO is “accepting “ the clarifications and who he/she is demanding references from? 

Sorry it is my mistake, it should be 'NOT accepting'

 

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In addition, the case law suggests that , if the government provided a clarification of its reasonable interpretation of a contract requirement, prior to proposal submission deadline, that differs from the proposer’s interpretation,  it might be considered a patent ambiguity. Therefore, the proposer should have been aware of the interpretation.  Depends upon the specific nature and circumstances.

i see you have responded during my writing this but I will post this before reading your post

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45 minutes ago, Abdul said:

Sorry it is my mistake, it should be 'NOT accepting'

 

I still don’t understand what you described and who must provide what reference. Can you be more specific please?  I don’t know if you are the government or the contractor. And What do you mean by contracting officer is not accepting the clarifications.

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16 minutes ago, joel hoffman said:

In addition, the case law suggests that , if the government provided a clarification of its reasonable interpretation of a contract requirement, prior to proposal submission deadline, that differs from the proposer’s interpretation,  it might be considered a patent ambiguity. Therefore, the proposer should have been aware of the interpretation.  Depends upon the specific nature and circumstances.

i see you have responded during my writing this but I will post this before reading your post

I will qualify my response.   If the governments pre-bid clarification stated that there was a mistake in the drawings or specifications, not an ambiguity which could be interpreted two different ways, the government generally should issue an pre-bid amendment to CHANGE the mistake or omission. In that case, if no amendment was issued, the government might be obliged to issue a change after award.  This also depends upon the specific facts and circumstances. There is much caselaw on this - but depends upon the specifics.

A good reference is Nash’s “Administration of Government Contracts”. Very detailed discussion with caselaw references.

Edited by joel hoffman
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1 hour ago, joel hoffman said:

I will qualify my response.   If the governments pre-bid clarification stated that there was a mistake in the drawings or specifications, not an ambiguity which could be interpreted two different ways, the government generally should issue an pre-bid amendment to CHANGE the mistake or omission. In that case, if no amendment was issued, the government might be obliged to issue a change after award.  This also depends upon the specific facts and circumstances. There is much caselaw on this - but depends upon the specifics.

A good reference is Nash’s “Administration of Government Contracts”. Very detailed discussion with caselaw references.

Hi Joel...

Let me describe the case clearly. I am from the Contractor side.

Original solicitation SOW section states that "The Contractor shall provide and install all communications equipment including but not limited to outside plant conduit, pull-strings, manholes handholes, interior conduit, and junction boxes for future installation of voice/data jacks per the provided plans and specifications"

Solicitation drawing shows telecommunication panel in electrical room. But there was no relevant specification for communication system (Div.27).

So as guided by the RFP, we asked to clarify the communication scope during the proposal stage vide 'projnet'. The response was " The contractor shall construct communication manholes/handholes and conduit as shown on the plan. The contractor is not responsible for any connections/wiring or telecom equipment"

Hence it is clearly understood that there is no telecom equipment required as per the clarification.  But this clarification was not updated in the specification/ drawing through an official amendment during the proposal stage. So the final contract drawing and specification have the same old details as mentioned above in the solicitation stage without the modification as clarified.

Now during the construction, the COR is demanding for the communication panel as shown on the drawing. When we explained that the communication panel is not required based on the clarification provided during the bid stage, the response from COR was " KTR is to provide actual contract documentation that shows revisions were made to the Specs & Drawings  stating that, "the contractor is not responsible for any connection/wiring or telecom equipment".

Hope it gives you a clear picture.

If you can provide any FAR reference / any case reference to substantiate that the clarifications to the bidders inquiry are part of the contract, that will be great.

 

 

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1 hour ago, Abdul said:

" The contractor shall construct communication manholes/handholes and conduit as shown on the plan. The contractor is not responsible for any connections/wiring or telecom equipment"

Is this in writing and if so was it via a amendment to the solicitation?   If other than by an amendment who provided the "in writing" response?

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Abdul,

You probably need an attorney.  The matter of whether answers to questions during the solicitation are courtesy or contractually binding is very fact-dependent.  And whether you should have been on notice of an ambiguity is also very fact-dependent.  It might be that you will need to make a claim under the contract clause at FAR 52.233-1, Disputes.  The case law goes both ways on both of these matters.

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In this case, a question also appears to be whether the communications panel is “telecom equipment”. 

And I agree with Carl and ji

I would bet that this is an Army Installation because the Army installs it’s own telecom and IT devices.

Please verify that the drawings provided some kind of detail for the telecom panel.

Whoever finalized the technical requirements may have used sketches or a narrative provided by the Army agency.  Many of these projects have poorly coordinated delineations between Contractor and Army responsibilities (and probably may not be a comm/IT design expert). I know from numerous reviews of RFP’s for Army construction projects.

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14 hours ago, C Culham said:

Is this in writing and if so was it via a amendment to the solicitation?   If other than by an amendment who provided the "in writing" response?

Culham,

Yes all the clarifications were in writing, clarified by the CO during the proposal stage.

Below are the extracts from the instruction to offerors:

  • "Any questions related to specific terms and conditions contained within the solicitation should be resolved prior to submission of an offer"
  • "Failing to submit or completely fill out attachments properly may result in rejection of the offer without further evaluation. Therefore, offerors are urged to follow instructions and raise questions through inquiries if instructions are not understood."

Please refer the attachment for the instruction to submit the bidder inquiries, all the queries were clarified by the CO during the proposal stage. The written clarification to the inquiries were accessible to all the bidders.  So will it be considered as an amendment to the solicitation as per FAR 15.206?

 

 

Projnet instruction.JPG

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Adull,  does the specific issue concern whether or not the communication panel is “telecom equipment”? If so, was the panel specifically described in enough detail on the drawings to know exactly what to purchase and install? E.g., size? What exactly were you seeking clarification of when you asked? 

Or, was the comm panel merely shown on the utility room dwg to locate where it would be located with respect to all the other electrical panels and other equipment? 

i noticed that you did not mention junction boxes which were also indicated on the drawings but not specifically referred to in the clarification? Did you assume that those were also not to be installed? Probably not, because they are generally in-wall and are integral to the conduit installation. Even if surface mounted, they would be integral to the conduit installation. 

 I believe a difference between junction boxes and a comm panel would be how they are installed. In-wall vs. surface mounted. However, how does one install conduit to a future panel box without having the actual box in order to route and bend /terminate the conduit? Normal trade practice is to terminate the conduit in the empty box, right? Did the solicitation indicate that the Army would be installing their equipment at the same time? Probably not. 

knowing exactly what your pre -bid inquiry asked would be helpful to understand the context of the Corps clarification to you.

if the “clarification” changed the requirement, then the government should have amended the drawings or specs.

im assuming that the clarifications as well as some other aspects of Division 00 in the RFP weren’t incorporated in the conformed contract.

So the question seems to be, is the panel intended to be shown only for location information or is it integral to the conduit installation (since you aren’t questioning the need for other junction boxes)?

Contract interpretation can be complex and requires knowledge of the clarification request, contract and context, as a whole and may also involve knowledge of the trade practice. . Without having access to all the info, I couldn’t tell you whether the box is required or not.

we have explained that, if a clarification actually changes the requirement by directly conflicting with the rest of the solicitation, the solicitation generally must be amended to resolve the conflict - plus the conformed electronic contract documents  (probably) don’t include the clarifications.

Case law, not necessarily the FAR or a government wide standard solicitation provision has developed to cover this. The ProjNet instructions don’t address it.

You can submit a claim. However, the legal cost, if a lawyer is necessary, will possibly exceed the cost of the box and labor involved. you might possibly be successful if you can show that your reasonable interpretation was that the panel was shown only for location info on the dwg and that you did not need the panel to exactly run the conduit for future box installation by the Army.

 

 

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Another thought - For the electrical installation in the utility room aren’t there other panel boxes provided and installed by the contractor as normal and integral part of the raw conduit installation? It would seem to me that boxes themselves are separate from electrical equipment or communications “equipment” installed by others?

Terminations, patch panels, blocks, etc. might be considered “communications equipment”, which are installed by others in a comm panel box. 

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