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#1 vmatthews

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Posted 24 August 2011 - 04:14 PM

My office issued a construction RFP without stating the period of performance (POP) nor did the RFP provide for a place for the contractors to propose a POP. We have received the proposals, and of course, no one provided a POP. I am trying to find guidance, case law, etc., to provide the CO as to what should be done. If the low offeror is asked for their POP, but not the other contractors, I think a protest could be lodged. What are some issues that could occur? Is there the possibility that if the government had stated the POP in the RFP, could prices have been different? Any help would be greatly appreciated.

#2 Vern Edwards

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Posted 24 August 2011 - 06:39 PM

Issue an amendment to the RFP to state the number of calendar days the contractor will have to complete the project after receipt of the notice to proceed. Send the amendment to the firms that submitted proposals. Give the offerors a chance to modify their proposals before you begin evaluations. See FAR 15.206. It is perfectly legal to amend an RFP after receipt of proposals.

Piece of cake.

#3 vmatthews

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Posted 25 August 2011 - 06:29 AM

Vern,

Thanks for the quick response. I have told the CO that an amendment should be issued; however, the CO wants to make award without issuing an amendment. So, I was wondering if there are some GAO cases that relate to this issue, as this will help the CO understand why an amendment should be issued.

Van

#4 joel hoffman

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Posted 25 August 2011 - 06:54 AM

Vern,

Thanks for the quick response. I have told the CO that an amendment should be issued; however, the CO wants to make award without issuing an amendment. So, I was wondering if there are some GAO cases that relate to this issue, as this will help the CO understand why an amendment should be issued.

Van


I think that the KO's course of action is wrong for a construction contract. The RFP is fatally flawed in that there is no common criteria to even compare the basis of pricing, without a required completion period. There is nothing to enforce for required time of completion. Contract performance or lack of timely progress is simply unenforceable. Why does it take a GAO decision to see that?

There is discussion in Nash and Cibinics' Formation of Government Contracts, Third Edition about improper specifications that are unclear or ambiguous with cases starting on page 361, with numerous Decisions cited. Failure to establish a performance period wasn't specifically mentioned. However - how can you compare the basis of pricing? How can you enforce timely performance without any requirement? Construction is much different than a supply or service contract. Progress payments are involved - the government is at risk for progress payments made to a contractor, vs. paying for a service or or supply after delivery or performance. When or how do you quickly determine that the contractor's performance is unacceptable or if it has defaulted?

The amendment could establish the completion period. Or the government could establish a maximum completion period acceptable to the government and allow the offerors to propose a period not to exceed that period. Then, you will need to establish evaluation criteria and advise the proposers what the government's time objective is and what its relationship to price is. Does the government want the most economical time period within the maximum allowed? (probably) Is a shorter period desirable or critical from a time aspect? (Probably not important to the government if you didn't include the period in the original RFP). Is time more or less important than price, as long as the price is within the budget? Will a shorter period that is lower in price than a proposal with a longer period be considered valuable (I'd say yes)? Or you could simply allow the offerors to propose the period without a stated limit. That would be trickier and require some thought about objectives and evaluation criteria. Or - you could provide a "target" maximum period and allow proposers to justify a longer proposed period, again with evaluation criteria.

Simply to award a construction contract without discussions or without amending the RFP to establish a legally enforceable period of performance is NUTS!

#5 joel hoffman

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Posted 25 August 2011 - 07:20 AM

vmathews - I edited my above response as well as this one while you were viewing the thread - sorry.

Speaking of progress payments - how does the government even determine whether or not to hold retainage from a progress payment to protect its interests - or that of the surety providing bonds (assuming that bonds are required). Not including a required completion period also puts the surety at higher risk, too. The surety might not be able to track timely progress either.

#6 vmatthews

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Posted 25 August 2011 - 07:23 AM

Joel,

Thank you for making my morning. As always, I enjoyed your response and I totally agree with you! Thank you for providing your "on target" insight. You have provided me with some great thoughts to provide to the CO on the path that should be followed! Again, thanks.

Van

#7 joel hoffman

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Posted 25 August 2011 - 07:36 AM

Joel,

Thank you for making my morning. As always, I enjoyed your response and I totally agree with you! Thank you for providing your "on target" insight. You have provided me with some great thoughts to provide to the CO on the path that should be followed! Again, thanks.

Van


Van, I'm done editing the above posts - Mea culpa! Mea culpa! Mea maxima culpa!

#8 Cajuncharlie

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Posted 25 August 2011 - 07:55 AM

I'm looking now at a major federal construction contract with no final completion date. It happens. (It does, however, have some milestones and a 20-page schedule specification.

#9 Vern Edwards

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Posted 25 August 2011 - 08:27 AM

Going ahead with the award is pretty dumb. If a CO working for me did that I'd pull his warrant.

#10 vmatthews

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Posted 25 August 2011 - 08:29 AM

Joel's guidance about reading Formation of Government Contracts was on target. It referenced B-169368, APRIL 21, 1970, 49 COMP. GEN. 713, which even though it dealt with an IFB, the principle can be applied to an RFP. :)

#11 C Culham

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Posted 26 August 2011 - 05:48 AM

A little late for the good of the order but in reading the thread I see no mention of FAR Part 11 and specifically FAR 11.401 and FAR 11.404(b) that require a POP for a construction solicitation/contract, as appropriate.

11.401 General.
(a) The time of delivery or performance is an essential contract element and shall be clearly stated in solicitations. Contracting officers shall ensure that delivery or performance schedules are realistic and meet the requirements of the acquisition. Schedules that are unnecessarily short or difficult to attain?
(1) Tend to restrict competition,
(2) Are inconsistent with small business policies, and
(3) May result in higher contract prices.
(b) Solicitations shall, except when clearly unnecessary, inform bidders or offerors of the basis on which their bids or proposals will be evaluated with respect to time of delivery or performance.
© If timely delivery or performance is unusually important to the Government, liquidated damages clauses may be used (see Subpart 11.5).

11.404(b) Construction. The contracting officer shall insert the clause at 52.211-10, Commencement, Prosecution, and Completion of Work, in solicitations and contracts when a fixed-price construction contract is contemplated. The clause may be changed to accommodate the issuance of orders under indefinite-delivery contracts. If the completion date is expressed as a specific calendar date, computed on the basis of the contractor receiving the notice to proceed by a certain day, the contracting officer may use the clause with its Alternate I.

#12 Vern Edwards

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Posted 26 August 2011 - 07:17 AM

vmatthews:

You started out by asking this question:

I am trying to find guidance, case law, etc., to provide the CO as to what should be done.

You have been told that the CO should amend the RFP to add a completion time. Are we now just complaining about how dumb your CO is or do you still have unanswered questions?

#13 joel hoffman

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Posted 26 August 2011 - 09:02 AM

A little late for the good of the order but in reading the thread I see no mention of FAR Part 11 and specifically FAR 11.401 and FAR 11.404(b) that require a POP for a construction solicitation/contract, as appropriate...


Carl, good read! You specifically answered Van's question. I overlooked the clause because it is in FAR Part 11 and because I'm forgetful. I think I stated why it is necessary but forgot about the clause itself. This mandatory clause is specifically intended to identify the period of performance or a specific completion date in the solicitation and contract. The KO doesn't have the discretion to exclude it. How long can it take to issue a quick amendment and get revised proposals? There is still over a month left in the fiscal year.

Here is the clause 52.211-10 -- Commencement, Prosecution, and Completion of Work:

"As prescribed in 11.404(b), insert the following clause in solicitations and contracts when a fixed-price construction contract is contemplated. The clause may be changed to accommodate the issuance of orders under indefinite-delivery contracts for construction.

Commencement, Prosecution, and Completion of Work (Apr 1984)

The Contractor shall be required to

(a ) commence work under this contract within _________ [Contracting Officer insert number] calendar days after the date the Contractor receives the notice to proceed,

(b ) prosecute the work diligently, and

(c ) complete the entire work ready for use not later than ______________.* The time stated for completion shall include final cleanup of the premises.

(End of Clause)

* The Contracting Officer shall specify either a number of days after the date the contractor receives the notice to proceed, or a calendar date.

Alternate I (Apr 1984). If the completion date is expressed as a specific calendar date, computed on the basis of the contractor receiving the notice to proceed by a certain day, add the following paragraph to the basic clause:

The completion date is based on the assumption that the successful offeror will receive the notice to proceed by_______________[Contracting Officer insert date]. The completion date will be extended by the number of calendar days after the above date that the Contractor receives the notice to proceed, except to the extent that the delay in issuance of the notice to proceed results from the failure of the Contractor to execute the contract and give the required performance and payment bonds within the time specified in the offer."


And DUH!!! Even more like a hammer that should be dropped on my head:

"11.401 -- General.

(a) The time of delivery or performance is an essential contract element and shall be clearly stated in solicitations..."

#14 joel hoffman

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Posted 26 August 2011 - 02:48 PM

For general information, the clause 52.211-10 -- Commencement, Prosecution, and Completion of Work can be worded to accommodate a completion period that was included in the accepted proposal. On construction or design-build contracts and task orders which we allow proposers to propose the contract duration, we fill in the clause , worded something similar to the following:

"Commencement, Prosecution, and Completion of Work (Apr 1984)

The Contractor shall be required to

(a ) commence work under this contract within XX__ calendar days after the date the Contractor receives the notice to proceed,

(b ) prosecute the work diligently, and

(c ) complete the entire work ready for use not later than the number of calendar days after receipt of the Notice to Proceed that were proposed in the Contractor's accepted proposal, not to exceed YY calendar days. The time stated for completion shall include final cleanup of the premises.

(End of Clause)".

We also identify the maximum number of days that the firms may propose in the CLIN Schedule and include a Line Item for the contract duration. Contract duration is then included as an evaluation subfactor with evaluation criteria.




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