ITEM REJECTED BECAUSE GOVERNMENT DOE NOT LIKE IT

[Rodolfo]

My company has been awarded a construction contract to Install Pavilion at Hoekstra Field, Caserma Ederle, Vicenza, Italy in the amount of $ 541,429.48 with a completion date 24 April 2010. The contract is firm fixed price design & build at it contains the FAR Clause 52.246-12 -- Inspection of Construction (Aug. 1996).

At page 4 of 10 of the WORK REQUIREMENT dated 15 April 2009 you read in paragraph C. 2 ?The water shall serve the service counters and the toilet facilities to include two drinking fountains?. In no other part of the specification or drawings you can find other references to the fountains (no type, no model, and no size).

In absence of a specific type of drinking fountain, in preparing our offer we have considered a standard product of a manufacturer specializing in the construction of fountains.

Performance was substantially completed on 24 April 2010 pending correction of a few punch list items (most of them already fixed).

The COR is rejecting the ?faucets? because ?they are not of his liking?. For your information, our firm installed two different types of faucets but neither satisfied the desires of the COR. As of today the COR failed to inform us in writing why the faucet does not meet the work requirement. The COR maintains that (VERBATIM): ?drinking fountain: when we received the fountain submittal, we never received a submittal for the actual fountain faucet and do not like what has been installed, thus we have requested the contractor submit another solution"

IAW the WORK REQUIREMENT Government approval was required for design, critical material, deviations, O&M manuals or equipment whose compatibility with the entire system must be checked, and other items as designated by the Contracting Officer. We have submitted the drinking fountain for approval (it was approved) but not the ?faucet? because its submittal was not part of the Government approval (it was not a critical material, a deviation, an equipment whose for Government approval compatibility with the entire system must be checked, or an item designated by the Contracting Officer). Furthermore, because a component of a standard product of a manufacturer specializing in the construction of fountains.

Under Government contract law, the Government has a right to strictly enforce compliance with its specifications. See H. L. C. &Associates Construction Co. v. United States, 367 F.2d 586, 598(Ct.Cl. 1966) and Maxwell Dynamometer Co. v. United States, 386F.2d 855, 868 (Ct.Cl. 1967).

FAR Clause 52.246-12 -- Inspection of Construction (Aug. 1996) incorporated under this contract states ? The Contractor shall, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government consents to accept the work with an appropriate adjustment in contract price. ?

However, the Armed Service Board of Contract Appeal has reiterated in various occasions that when the Government rejects work as non conforming, it must be prepared to show that the contract requirement have not been met. See Hardeman-Monier-Hutcherson, ASBCA 11785, 67-1 BCA ? 6210 (1967); Ramar Co., ASBCA 16060, 72-2 BCA ? 9644 (1972); Pams Products, Inc., ASBCA 15847, 72-1 BCA ? 9401 (1972).

To simply maintain that it is not of his liking (we have installed two different types of faucets and both were rejected) does not give to the Government the right to reject it as non conforming. The Government has the burden to prove that is not conforming to the specifications incorporated as part of the contract. If the Government had a specific model of faucet in its mind, he had the duty to clearly address the model, the type, and any other information which would have assisted us in taking its cost in consideration when we formulated our offer.

To show our good will to cooperate with the Government we may replace for the third time the faucet with a type indicated to us by the Government if the price for the item will not be too exorbitant. However, we do not intend to continue to explore the market and to propose to the COR different types of faucets until we find one of his liking.

What is your opinion? You may find the issue ridiculous, however it is becoming a recurring issue in Vicenza. My opinion is that unless the Government clearly indicates in the specifications/drawings what type of material/supply it wants, Contractors, in absence of specific information, should formulate their offer considering standard products. What is your opinion? Is there any court case that addresses this issue?

Thanks

[Guest Vern Edwards]

You seem to understand the law well. So what are you going to do? Are you going to let yourself be bullied?

[Retreadfed]

My company has been awarded a construction contract to Install Pavilion at Hoekstra Field, Caserma Ederle, Vicenza, Italy in the amount of $ 541,429.48 with a completion date 24 April 2010. The contract is firm fixed price design & build at it contains the FAR Clause 52.246-12 -- Inspection of Construction (Aug. 1996).

At page 4 of 10 of the WORK REQUIREMENT dated 15 April 2009 you read in paragraph C. 2 ?The water shall serve the service counters and the toilet facilities to include two drinking fountains?. In no other part of the specification or drawings you can find other references to the fountains (no type, no model, and no size).

In absence of a specific type of drinking fountain, in preparing our offer we have considered a standard product of a manufacturer specializing in the construction of fountains.

Performance was substantially completed on 24 April 2010 pending correction of a few punch list items (most of them already fixed).

The COR is rejecting the ?faucets? because ?they are not of his liking?. For your information, our firm installed two different types of faucets but neither satisfied the desires of the COR. As of today the COR failed to inform us in writing why the faucet does not meet the work requirement. The COR maintains that (VERBATIM): ?drinking fountain: when we received the fountain submittal, we never received a submittal for the actual fountain faucet and do not like what has been installed, thus we have requested the contractor submit another solution"

IAW the WORK REQUIREMENT Government approval was required for design, critical material, deviations, O&M manuals or equipment whose compatibility with the entire system must be checked, and other items as designated by the Contracting Officer. We have submitted the drinking fountain for approval (it was approved) but not the ?faucet? because its submittal was not part of the Government approval (it was not a critical material, a deviation, an equipment whose for Government approval compatibility with the entire system must be checked, or an item designated by the Contracting Officer). Furthermore, because a component of a standard product of a manufacturer specializing in the construction of fountains.

Under Government contract law, the Government has a right to strictly enforce compliance with its specifications. See H. L. C. &Associates Construction Co. v. United States, 367 F.2d 586, 598(Ct.Cl. 1966) and Maxwell Dynamometer Co. v. United States, 386F.2d 855, 868 (Ct.Cl. 1967).

FAR Clause 52.246-12 -- Inspection of Construction (Aug. 1996) incorporated under this contract states ? The Contractor shall, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government consents to accept the work with an appropriate adjustment in contract price. ?

However, the Armed Service Board of Contract Appeal has reiterated in various occasions that when the Government rejects work as non conforming, it must be prepared to show that the contract requirement have not been met. See Hardeman-Monier-Hutcherson, ASBCA 11785, 67-1 BCA ? 6210 (1967); Ramar Co., ASBCA 16060, 72-2 BCA ? 9644 (1972); Pams Products, Inc., ASBCA 15847, 72-1 BCA ? 9401 (1972).

To simply maintain that it is not of his liking (we have installed two different types of faucets and both were rejected) does not give to the Government the right to reject it as non conforming. The Government has the burden to prove that is not conforming to the specifications incorporated as part of the contract. If the Government had a specific model of faucet in its mind, he had the duty to clearly address the model, the type, and any other information which would have assisted us in taking its cost in consideration when we formulated our offer.

To show our good will to cooperate with the Government we may replace for the third time the faucet with a type indicated to us by the Government if the price for the item will not be too exorbitant. However, we do not intend to continue to explore the market and to propose to the COR different types of faucets until we find one of his liking.

What is your opinion? You may find the issue ridiculous, however it is becoming a recurring issue in Vicenza. My opinion is that unless the Government clearly indicates in the specifications/drawings what type of material/supply it wants, Contractors, in absence of specific information, should formulate their offer considering standard products. What is your opinion? Is there any court case that addresses this issue?

Thanks

You keep referring to the COR, but have not mentioned the contracting officer. Has this issue been brought up to him/her? If so, where does (s)he stand on this?

[Rodolfo]

You keep referring to the COR, but have not mentioned the contracting officer. Has this issue been brought up to him/her? If so, where does (s)he stand on this?

[Rodolfo]

You keep referring to the COR, but have not mentioned the contracting officer. Has this issue been brought up to him/her? If so, where does (s)he stand on this?

[Rodolfo]

So far the Contracting Officer did not take any action; only wrote an e-mail to my company (I am not an employee but a consultant) quoting verbatim the COR comment on the faucet ?drinking fountain: when we received the fountain submittal, we never received a submittal for the actual fountain faucet and do not like what has been installed, thus we have requested the contractor submit another solution".

In design & build projects the contracting agency shall develop, either in-house or by contract, a scope of work that defines the project and states the Government's requirements. The design-build specifications prepared by the technical office in Vicenza are often functional specifications rather than design specifications describing the end product without describing a means of accomplishing it. Design specifications required to follow them as one would a road map; whereas, functional specifications simply set forth an objective or end result to be achieved, and the contractor may select the means of accomplishing the task. In most of the cases they do not specify any particular approach or product to be used in achieving the objectives. In this particular instance the drinking fountains where described as follows [VERBATIM]. ?The water shall serve the service counters and the toilet facilities to include two drinking fountains?.

The offeror formulated the offer based on the provided technical specifications; however, since the specifications were totally silent about the drinking fountains, the offeror based its offer on industry-standard specifications. We must keep in mind that these contracts are Firm Fixed Prices. A firm-fixed-price contract provides for a price that is not subject to any adjustment on the basis of the Contractor?s cost experience in performing the contract. This contract type places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss.

There is a misunderstanding, in my opinion, on how the COR interprets the design & build projects. COR requires the Contractors to submit for his prior approval all the equipment, material, or supply that is not clearly described in the specifications/drawings and it is up to him and other technical members to unilaterally decide whether they like or not the equipment, material, or supply the Contractor contemplates incorporating into the work regardless the fact they are suitable for their intended purpose. What is not approved must be resubmitted. Often the Contractors incur in additional cost in order to satisfy the desires of the Government and to maintain a good relationship. COR makes reference to paragraph b of FAR clause 52.236-5 -- Material and Workmanship [VERBATIM] ?When required by this contract or by the Contracting Officer, the Contractor shall also obtain the Contracting Officer?s approval of the material or articles which the Contractor contemplates incorporating into the work?. However the clause continues stating ?Machinery, equipment, material, and articles that do not have the required approval shall be installed or used at the risk of subsequent rejection [motivated ? emphasis added]?.

The Government cannot invoke the right to reject work, equipment, material, or article incorporated into the work simply because it did not obtain its prior approval or because it does not like it. Its right to reject is dependent to the failure to strictly comply with a contract requirement specifically called out in the contract and susceptible to some form of precise measurement. Where either of the requirements are not present, the Government may only reject if the work will not be suitable for its intended purpose. Thus, the strict compliance rule will be enforced where the contract contains precise design (dimensions, tolerances, materials, etc.) or performance (weight, speed, etc.) requirement.

When the Government rejects the work, it has the burden of going forward with evidence that the contract requirements have not been met. In Inter-West, Ltd., DOTBCA 2238, 92-1 BCA 24,601, op. withdraw on other grounds, 92-3 BCA 25,075, the board stated that ?where the Government holds the Contractor responsible for nonconforming work, the Government bears the burden of persuasion that the rejected work was not in compliance with the contract requirement.? To assert that the faucet was not submitted for approval and it does not like, by no means constitutes a clear and convincing evidence that the contract requirements have not been met.

Any other thought, comment, advise?

Thanks to your patience and sorry for syntactic and grammar errors.

Rodolfo Prischich

[Guest Vern Edwards]

What your point boils down to is this: You have submitted an item that is within specification and the COTR is using the materials submittal process to wrongfully demand something that is more to his own liking. We get it. We don't need to read several paragraphs to understand.

We don't have your contract to examine, so we have to take your word for what it says. If things are as you say they are, then it seems that your position is legally sound. What more "thoughts" do you want from us? Free legal research and opinion?

Speak your piece to the CO and demand a decision. If you don't like the decision, hire a lawyer.

[joel hoffman]

I agree with everything that Vern Edwards said above.

We don't have your contract, so don't know exactly what design-build terms are incorporated. .

[joel hoffman]

This may look silly, but have you asked the COR what faucets he/she "likes"? Do you know what they are looking for? Will satisfying the COR require replacing the fountains? Roughly how much cost difference are we discussing here?

I must admit that I didn't know faucet styles are interchangeable on drinking fountains. If you submitted a "fountain", I would think that the product literature would illustrate or show what type faucet(s) are availa?le or included. I'm apparently not familiar with European style water fountains.

If we are talking a couple of hundred Euros, is this worth the effort involved in fighting over it? It appears that you've invested that much in your research. I would have asked the COR what they "like" before resubmitting another disapproved submittal. Then, after determining the price difference, I'd look at my options .

[joel hoffman]

P.S., You said that the COR hasn't told you "in writing" what they like. You didn't say that he/she did not "say" what they "like".

At any rate, the water fountain was submitted and approved and you said that the faucets are a "component" of a standard product. You didn't say that the faucets are standard components of the approved fountains. In other words, is it a component matched to the "approved" fountain or is it a component of some other style, brand or type fountain?

[Rodolfo]

Mr. Hoffman, I don't want to create more troubles. It seems I have upset some members of this forum and I really apologize for having done that. I have believed this was an open forum for discussions but I am afraid my different culture, my different language, and the fact that I am new to this forum put me into troubles. It is not the cost of a couple of new faucets to make happy the COR which bothers me (the firm). The point is: can the USG rejects items only because do not like them or should reject items because not conforming to specs or not working? I was told this is a recurring issue. I have conducted extensive researches and I only wanted someone to tell me if I am or I am not on the right track. Nothing else. I was not looking for free service, nor I wanted to annoy anyone. But maybe my approach was totally wrong. So again, sorry. The issue is close and I will not reopen it.

[Guest Vern Edwards]

Mr. Hoffman, I don't want to create more troubles. It seems I have upset some members of this forum and I really apologize for having done that. I have believed this was an open forum for discussions but I am afraid my different culture, my different language, and the fact that I am new to this forum put me into troubles. It is not the cost of a couple of new faucets to make happy the COR which bothers me (the firm). The point is: can the USG rejects items only because do not like them or should reject items because not conforming to specs or not working? I was told this is a recurring issue. I have conducted extensive researches and I only wanted someone to tell me if I am or I am not on the right track. Nothing else. I was not looking for free service, nor I wanted to annoy anyone. But maybe my approach was totally wrong. So again, sorry. The issue is close and I will not reopen it.

You have already been told that you understand the law well. The COR cannot reject your submittal just because he does not like it. He can reject it only if it does not conform to specification. A course of action has been suggested.

[joel hoffman]

Mr. Hoffman, I don't want to create more troubles. It seems I have upset some members of this forum and I really apologize for having done that. I have believed this was an open forum for discussions but I am afraid my different culture, my different language, and the fact that I am new to this forum put me into troubles. It is not the cost of a couple of new faucets to make happy the COR which bothers me (the firm). The point is: can the USG rejects items only because do not like them or should reject items because not conforming to specs or not working? I was told this is a recurring issue. I have conducted extensive researches and I only wanted someone to tell me if I am or I am not on the right track. Nothing else. I was not looking for free service, nor I wanted to annoy anyone. But maybe my approach was totally wrong. So again, sorry. The issue is close and I will not reopen it.

Rodolfo, you didnt upset me. Although I agree with Vern, the actual situation doesnt seem to totally track. I was trying to pull some more facts out to put this thing into perspective I'd be amazed if either the COR didnt suggest what specific faucet they desire or if the firm you represent didnt ask what they want. Also, unless I dont understand what a "faucet" on a fountain cooler is over in Italy, it should be identifiable from the fountain submittal. You said your client didnt identify it because it is "a component of a standard product of a manufacturer specializing in the construction of fountains." You didnt say if it was from the same fountain manufacturer or if the contractor mixed faucets from another another manufacturer.

This seems to be a heck of a fuss over a small dollar item. But it looks like someone is trying to make a point over what, at first glance, appears to be a recurring abuse of the submittal system. Barring some special language in this design-build contract (which would not surprise me), if there is no design criteria cited for the "faucets", then the COR has little recourse to "disapprove" faucets that meet the performance requirements. This would be true even if your client didnt specifically submit them to begin with.