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  2. No. There are typically activities for concrete work: E.g., . Forming. Stripping of forms.
  3. Today
  4. Another thing to assess in career planning is what is your long term goal? If you want to be a high grade contract specialist, there is only so far you can go without becoming a supervisor/manager. There are exceptions for support of high visibility, high significant acquisitions but those aren’t easy to come by. Often many agencies without many 1101 jobs think of 1101s as people who can’t make the cut as 1102. That’s not true but if you’re a senior person in charge of a procurement operation, an 1102 applicant with experience, a track record of demonstrated results, and good referrals, makes that person a relatively safe choice. Unless you are a senior manager, generally you want a supervisor as more knowledgeable than their employees in the subject matter. The initial reaction is an 1101 isn’t as capable doing procurement work. An advantage of remaining an 1102 is there’s a recognized career path with required training. It takes a degree to enter. It’s viewed as a more professional career field.
  5. Joel, Does forming for concrete fall under preparatory work for purposes of FAR 52.232-5?
  6. Scaffold erection is typically a work activity. It’s like forming for concrete. The forms aren’t part of the installed work either. Construction contracts don’t generally discuss such because they don’t need to. The government’s position isn’t reasonable The OP said that the government justified its position based on an assumption that in the event of a default the government wouldn’t be able to use it to complete the project. WRONG! The government should secure the job site and or have the surety secure the job site. The contractor must indemnify the surety for its costs in excess of remaining contract funds. If it removes the scaffolding, it will end up being liable for replacement scaffold anyway. But don’t let that happen. Secure the job site!
  7. Yesterday
  8. In an invoicing situation, the burden of proof is generally on the contractor. If the contracting officer can't find it, the contractor should point to something in the contract that specifies its entitlement to immediate reimbursement of its incurred costs for scaffolding erection. If the contract specified exactly how scaffolding costs would be paid, then there would be no discussion here. But it seems the contract does not so specify. The agency's position seems to be reasonable -- other practitioners might approach the situation differently, but that doesn't mean the agency's position is unreasonable. Right. Ideally, the contractor will point to something in the contract that clearly specifies its entitlement to immediate payment for its incurred costs for the scaffolding. If not, it can still get a progress payment based on the estimate of work complete represented by the erection of the scaffolding (but not reimbursement for incurred costs) -- although, it will be serendipitous if the percent complete and incurred cost numbers coincide, right ;-). At least, this applies if the clause at FAR 52.232-5 is the basis for the desired payment. All this being said, if the contractor is unable to persuade the agency, it may (1) drop the matter; or (2) pursue remedy under the contract's Disputes clause.
  9. No. Proof is the contract that was mutually agreed to. And if the contract is not definitive to matter then what then ? I think you know with hope as has already been stated the conflict is settled at the level of the CO based on appropriate standards of contract interpretation inclusive of the standard of good faith and fair dealing. The scaffolds up afterall.
  10. @ji20874 is right. The clause only uses the word "proposal" (singular) once--at para (d)(4)(xv)--and even there it is clear it is talking about the contractor's estimating system overall. That said, you still have the question of withholding payments, and under which contracts that can be done. Obviously the clause is only included in contracts awarded on the basis of certified cost or pricing data. DFARS 215.408(1). Say the contractor has some other contract that includes 252.215-7005 and its estimating system was disapproved. For any contract held by the contractor, if the contract omits the clause at DFARS 252.242-7005 (prescribed at DFARS 252.242-7001), then you wouldn't withhold any payments from that contract.
  11. Here is the prescription for use of the clause as found in DFARS 215.408 "Use the clause at 252.215-7002, Cost Estimating System Requirements, in all solicitations and contracts to be awarded on the basis of certified cost or pricing data. " Further, DFARS 215.407-5 states "The contracting officer shall—(i) Through use of the clause at 252.215-7002, Cost Estimating System Requirements, apply the disclosure, maintenance, and review requirements to large business contractors meeting the criteria in paragraph (b)(2)(i) of this section; (ii) Consider whether to apply the disclosure, maintenance, and review requirements to large business contractors under paragraph (b)(2)(ii) of this section; and (iii) Not apply the disclosure, maintenance, and review requirements to other than large business contractors. Thus, it is clear that the clause does not apply to all contractors or all proposals.
  12. Sorry for my earlier comments. I misunderstood where in the process you were. I assumed the Government had just requested revised proposals. If the unstated evaluation criterion protest is ripe, the source selection is further along than I understood.
  13. P3 and other project controls software convert % complete of activities to dollars, which may or may not directly translate to subcontract costs.
  14. Okay. So, after all that happens, would you approve a payment to reimburse the contractor its actual costs for the erected scaffolding? Or would you approve a payment based on the percent of work complete represented by the erection of the scaffolding?
  15. Well, I thought the agency established that pay stubs were preferred, not mandatory. How is it unstated? It seems as though it is stated in Question 4. Don’t answer here — but you should expect to address these matters as the protest works its way through the process.
  16. If there is no separate line item for scaffold erection, the contractor breaks the applicable contract line item down into activities, which are “cost loaded” (assigned a value) within the overall CLIN. Note that the contractor has to provide subcontract amounts as part of the support data for progress payments anyway. When the contractor submits it’s breakdown of activities, the Corps reviews the amounts to see if they look reasonable, etc. There is a process. The contractor might or might not assign a value to the activity that would cover its costs plus markups. Its more complex than we have time here to describe in full detail.
  17. I don’t think it applies directly to proposals at all. It seems to me that the clause applies to the company’s processes and procedures for its corporate estimating system whenever the contractor submits proposals (to public and private sector customers) in the expectation of receiving contract awards. It applies at the back-office or system level.
  18. Update: We filed a pre-award protest stating that the requirement that direct labor rates be substantiated only with payroll stubs is unduly restrictive; is unstated evaluation criterion; and the agency abused its discretion in conducting discussions. We will see how it goes.
  19. Joel, So, would you approve a payment to reimburse the contractor its actual costs for the erected scaffolding? Or would you approve a payment based on the percent of work complete represented by the erection of the scaffolding?
  20. As a cost loaded activity in the contractor’s progress schedule, the Scaffold erection activity represents physical work and it is work in progress or work accomplished. It is necessary work on the critical path for numerous subsequent trade activities to proceed. It is a precursor constraint activity. They can’t start until the activity is complete in the areas that they will use the scaffolding. It’s as simple as that. But it is a separate activity, not one that is part of the follow on activities. Otherwise they would all have an activity start date associated with scaffold erection. No need to make it more complicated. And they would be starting those activities out of sequence. Buying Or renting scaffold and delivering it to the site might be prepatory work. However, this is a subcontracted effort involving direct labor and equipment to install. They are not being logical OR reasonable. When the government requires the contractor to use a cost loaded network analysis system as part of its project controls, then the work is required to be planned, controlled, executed, and reported in certain ways. It is illogical to erect scaffold prior to successor activities but to report it as part of later progress , after that work starts. I doubt the the KO had anything to do with the decision or the response to the OP. But if they did, then they as well as the ACO don’t understand what rights the government has in a default termination. They cited that as their justification. Their worries are unfounded
  21. I'm not so sure. Regardless, the burden of proof is on the contractor rather than the Government, right? That's not the standard for making progress payments in a construction contract. This would not be a sensible argument. Under the clause at FAR 52.232-5, we don't make progress payments to contractors to reimburse actual incurred costs. Rather, we make payments based on estimates of work complete (such as, 5% complete = 5% payment, and 50% complete = 50% payment, and so forth), less retainage as needed. [The exception is for bond premiums, where we will reimburse the contractor for the amount of the premiums.] In preparation of the estimate of completion or work, preparatory work may be considered -- but this does not call for full reimbursement of contractor's incurred costs for the preparatory work; rather, it merely allows preparatory work to be considered in calculating the estimate of completion of work. The original poster might have an easier time with its contracting officer if it drops its request for reimbursement based on actual incurred costs and instead asks for a normal progress payment for the scaffolding, for example, suggesting that the erection of the scaffolding = 5% of completion.
  22. From my view no but no one is advocating for being "obstinate and demanding" either. No disagreement based on the limited information but I differ with your view in that absent something specific in the contract (your must versus your may) the position of the government is without merit. Simply this position does not make any sense in the context of construction progress (invoice) payments. It is work that has been completed that has a cost to the contractor associated with it call it what you want. the contractors position is just he paid for it and he should be paid for it. Work I might add that probably has some element of safety requirements associated with it to which the contractor uses his/her own devices to address. Say scaffolding versus man lifts. Just to take you down a rabbit hole one could argue that the government is directing the contractors work by not allowing payment for something the contractor decided was needed to complete the work.
  23. Joel, Is anyone here advocating routine submission of claims to resolve or force resolution of matters that are not yet otherwise resolvable?
  24. I advocate explaining to the USACE that their concern about scaffolding not being available in the event of a default is unfounded because both the government and the surety will want it to remain for completion purposes and the government has that right to use it along with other onsite resources that could be considered prepatory work under the -49 clause. In addition, the erection of scaffolding is is an upfront activity that is paid for at the time of erection not as the vArious trades use it. It’s not reasonable to treat it as an indirect cost to be spread over the period of all trade activities. The USACE policy is to try to resolve matters of disagreement at the lowest level possible before resorting to litigation or formal disputes. I don’t advocate routinely submitting claims to resolve force resolution of matters that are not yet otherwise unresolvable. The USACE policy is also to develop partnering relationships with their contractors.
  25. It seems the agency has provided a reasonable explanation for its position. I would recommend that the contractor be polite and persuasive, rather than obstinate and demanding. I don't think the contractor can win the argument by being obstinate or demanding. But if the contractor really feels it is entitled, as a matter of right, to immediate payment for scaffolding costs, it needs to read and follow the instructions of the contract's Disputes clause. If the matter is appealed to a board of contract appeals, it is very possible that the agency will win there because the agency position may be seen as "reasonable" and within the bounds of discretion. Based on what I have read here, I differ with Joel and Carl in that I think the agency's contracting officer may approve the immediate scaffolding payment but I am not convinced that he or she must approve it. For now, polite and persuasive is probably better.
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