On 9/3/2025 at 4:25 PM, Vern Edwards said:

I'm not so sure about that. I think the price of a carpet installation job depends on more than just the number of square feet. I think configuration and installation conditions matter, as well. But, admittedly, it's been awhile.

Of course, what all of this points out is the absurdity of trying to establish standard rules for work that can vary in many, many ways from job to job.

Look 𑁋 the government's notion about what is and is not "commercial" is dubious. We're talking about words defined and applied by bureaucrats trying to write one set of rules that will apply to widely various transactions and relationships in a wide variety of industry specialties.

Is hiring someone to paint a room construction? No.The painter is not constructing anything. It's painting. It's only construction to a labor statistician and to someone trying to decide whether the Davis-Bacon Act should apply.

Blah, blah, blah. Critical thinking, please.

It is especially difficult to price out "commercial" materials for requirements overseas. There isn't just some catalog or online tool that can cover all locations, especially the local prices in a high threat post, or in a developing nation. Relying on tried and true pounding of the pavement to conduct market research and gather pricing data is oftentimes what must occur in order to receive reliable pricing data in those places. Doesn't matter if it's an HVAC project or a densification - if it's overseas, a LOT of other factors figure in such as a complex web of logistics, security, design, local coordination, VAT issues and so forth. Installing an HVAC system in Abidjan is going to be a far different animal than installing a similar system in Dallas.

There aren’t standard catalog prices for most construction projects. Don’t consider the “Means Estimating Guide” as “catalog pricing”.

It can provide unit priced estimates but each item must be estimated by applicable quantity and the underlying basis for an estimate depends upon applicable labor rates, available equipment and several other variable conditions.

7 hours ago, joel hoffman said:

What corners are you trying to cut ?

Of sorts a dang good question. Is it really an attempt to "cut corners" or exercise the use of procedures that might quicken the acquistion?

I spent a little time refreshing my brain with regard to FAR Part 36 and then the FAR Part 36 "Deviation". Using the Deviation it appears that none of the "must" clauses conflict with FAR 52.212-4 so inserting into a commercial construction service contract is plausible. Nothing prevents the tailoring of the Changes paragraph in clause 52.212-4 if commercial practice demonstrates that limiting changes to a unilateral right exists. I think there is a suggestion that limiting to a unilateral rights does exist in the commercial market. Then there is the "Payment" paragraph that has been discussed. But are progress payments allowed by the wording of the FAR and the use of 52.232-5 a "payment" or a form of contract financing allowed by the FAR? Me thinks the latter and again if a financing payment I see nothing in the FAR Part 12 Deviation that would prevent contract financing and one might conclude it is encouraged (Ref. FAR 12.108).

So my quickly researched and arrived at conclusion spins back to your question rephrased - What is gained by calling construction services commercial? The gain seems to be the ability to utilize simplified acquisition procedures which by implication suggests a more expedited process for the acquisition of construction services up to $7.5 million.

On 9/4/2025 at 5:59 AM, C Culham said:

My conclusion is what the Federal government constructs can be a commercial service almost all the time.

I agree in the general sense of the word commercial. But then we have to ask whether the policies in FAR Part 12 are suitable.

8 hours ago, joel hoffman said:

What corners are you trying to cut?

Good question. What if you were the CO for the construction of missile silos for the new Sentinel ICBM?

See Association of General Contractors: https://www.agc.org/construction-not-commodity

4 minutes ago, Vern Edwards said:

I agree in the general sense of the word commercial. But then we have to ask whether the policies in FAR Part 12 are suitable.

Good question. What if you were the CO for the construction of missile silos for the new Sentinel ICBM? What market prices are there?

See Association of General Contractors: https://www.agc.org/construction-not-commodity

The Association of General Contractors represents a huge share of the construction market.

And in my opinion, the DoD construction contractor format, using the Construction Specifications Institute’s MasterFormat is already a standard format in use in the marketplace.

24 minutes ago, C Culham said:

The gain seems to be the ability to utilize simplified acquisition procedures which by implication suggests a more expedited process for the acquisition of construction services up to $7.5 million.

The construction industry requires more time than a couple of weeks to just develop a bidding team, seek qualified, competitive subcontractors and suppliers, determine the scope of work, estimate quantities of materials and work, develop a construction approach, obtain bids, etc. Generally a site visit is necessary to see and also identify the conditions , locations, ask questions etc.

The industry already complains about having only 30 days to prepare and submit price proposals for non-design-build, construction projects .

For Design-build competitions, one must add some time for the firms and their teaming partners to develop enough preliminary design to estimate and price a proposal. We recommend 45 days in lieu of 30 days for D-B competitions.

In my experience, there is often room for improvements in initial pricing in a RFP due to many factors.

I have often been able to shave millions of dollars off initial proposed pricing that were due to uncertainties in conditions, ambiguous specs that drove up prices from subs, suppliers that see designs around certain specific equipment, etc.

On one large Air Force Project, we found alternate sources for high volume compression Turbines that dropped the price of that major equipment by $3 million from the initial proposed price.

In another instance, lack of identification of elevation to rock and to water tables on a very long, elevated, high volume, high velocity heated/chilled air line resulted in over $2 million in contingencies by foundation subcontractors for uncertainties and possibility of encountering rock excavation and de-watering.. We added unit-priced line items for rock excavation and de-watering. The proposers dropped prices by $2 million

In the end, we had a $1 million dollar underrun in those unit priced line items, resulting in over saving $3 million dollars below the initial proposed prices.

Those are but examples of dollar savings and/or improvements/corrections in the solicitations thst end up saving dollars and after award conflicts/delays/corrective action, etc.

Cutting corners to “expedite the process for the acquisition of construction services up to $7.5 million” doesn't serve the best interests of either the industry or the taxpayers.

(Note my examples cited reflect mid 1990’s pricing and lessons-learned. Current dollar levels for the same problems would be much higher.)

9 minutes ago, joel hoffman said:

In another instance, lack of identification of elevation to rock and to water tables on a very long, elevated, high volume, high velocity heated/chilled air line resulted in over $2 million in contingencies by foundation subcontractors for uncertainties and possibility of encountering rock excavation and de-watering.. We added unit-priced line items for rock excavation and de-watering. The proposers dropped prices by $2 million

In the end, we had a $1 million dollar underrun in those unit priced line items, resulting in over saving $3 million dollars below the initial proposed prices.

Joel, foot stomp this. This is where critical thinking matters the most - in proposal analysis. Unfortunately, the RFO changes to Part 52 and Part 11 have removed Subpart 11.7's variation in quantity guidance and removed FAR 52.211-18 Variation in Estimated Quantity. The clause must be reinserted via public comment on the Federal Register during this administration. Gosh, yours and my experience alone with this clause is reason enough to reinsert it. Wth!

"Move quickly, fail fast", they say. I get it, but it sure is a wild ride.

11.702 Construction contracts.

Construction contracts may authorize a variation in estimated quantities of unit-priced items. When the variation between the estimated quantity and the actual quantity of a unit-priced item is more than plus or minus 15 percent, an equitable adjustment in the contract price shall be made upon the demand of either the Government or the contractor. The contractor may request an extension of time if the quantity variation is such as to cause an increase in the time necessary for completion. The contracting officer must receive the request in writing within 10 days from the beginning of the period of delay. However, the contracting officer may extend this time limit before the date of final settlement of the contract. The contracting officer shall ascertain the facts and make any adjustment for extending the completion date that the findings justify.

11.703 Contract clauses.

(a) The contracting officer shall insert the clause at 52.211-16, Variation in Quantity, in solicitations and contracts, if authorizing a variation in quantity in fixed-price contracts for supplies or for services that involve the furnishing of supplies.

(b) The contracting officer may insert the clause at 52.211-17, Delivery of Excess Quantities, in solicitations and contracts, when a fixed-price supply contract is contemplated.

(c) The contracting officer shall insert the clause at 52.211-18, Variation in Estimated Quantity, in solicitations and contracts when a fixed-price construction contract is contemplated that authorizes a variation in the estimated quantity of unit-priced items.

52.211-18 Variation in Estimated Quantity.

As prescribed in 11.703(c), insert the following clause in solicitations and contracts when a fixed-price construction contract is contemplated that authorizes a variation in the estimated quantity of unit-priced items:

Variation in Estimated Quantity (APR 1984)

If the quantity of a unit-priced item in this contract is an estimated quantity and the actual quantity of the unit-priced item varies more than 15 percent above or below the estimated quantity, an equitable adjustment in the contract price shall be made upon demand of either party. The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above 115 percent or below 85 percent of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completion, the Contractor may request, in writing, an extension of time, to be received by the Contracting Officer within 10 days from the beginning of the delay, or within such further period as may be granted by the Contracting Officer before the date of final settlement of the contract. Upon the receipt of a written request for an extension, the Contracting Officer shall ascertain the facts and make an adjustment for extending the completion date as, in the judgement of the Contracting Officer, is justified.

(End of clause)

5 minutes ago, WifWaf said:

Joel, foot stomp this. This is where critical thinking matters the most - in proposal analysis. Unfortunately, the RFO changes to Part 52 and Part 11 have removed Subpart 11.7's variation in quantity guidance and removed FAR 52.211-18 Variation in Estimated Quantity. The clause must be reinserted via public comment on the Federal Register during this administration. Gosh, yours and my experience alone with this clause is reason enough to reinsert it. Wth!

"Move quickly, fail fast", they say. I get it, but it sure is a wild ride.

WOW!!!! @WifWaf I absolutely agree with you!!!!!! What idiots decided to remove this time and case law tested VEQ coverage??????

1 hour ago, joel hoffman said:

The construction industry requires more time than a couple of weeks to just develop a bidding team, seek qualified, competitive subcontractors and suppliers, determine the scope of work, estimate quantities of materials and work, develop a construction approach, obtain bids, etc. Generally a site visit is necessary to see and also identify the conditions , locations, ask questions etc.

One of the problems is that 19th Century thinking underlies our acquisition policies, with its emphasis on full and open competition to produce "fair and reasonable prices" and prevent corruption, using the bid protest system to encourage protesters acting as "whistleblowers".

In complex relational acquisitions, as opposed to comparatively simple transactional acquisitions, "price" (see FAR 15.401) is really nothing more than an agreed upon budget. It is not a "price" in any formal economic or legal sense. And full and open competition policy is implemented by a complex and costly process of contractor selection and contract formation that usually involves little in the way of communications entailing joint specification, planning, and budgeting. It's madness, really.

Instead of having to entertain proposals from all comers, we should choose competitors wisely and in manageable numbers, choose a prospective contractor based on qualifications, not dollar amount, and then engage in joint planning and budgeting (i.e., "pricing") prior to contract formation. Our competitive "negotiation" process is still grounded in the "formal advertising" (now sealed bidding) process of pre-CICA The result is that the rules of our competitive contractor selection/contract formation processes effective preclude meaningful communication prior to contract award, which is the defect at the heart of many of our most pressing contracting problems.

2 hours ago, joel hoffman said:

WOW!!!! @WifWaf I absolutely agree with you!!!!!! What idiots decided to remove this time and case law tested VEQ coverage??????

2 hours ago, WifWaf said:

Joel, foot stomp this. This is where critical thinking matters the most - in proposal analysis. Unfortunately, the RFO changes to Part 52 and Part 11 have removed Subpart 11.7's variation in quantity guidance and removed FAR 52.211-18 Variation in Estimated Quantity. The clause must be reinserted via public comment on the Federal Register during this administration. Gosh, yours and my experience alone with this clause is reason enough to reinsert it. Wth!

"Move quickly, fail fast", they say. I get it, but it sure is a wild ride.

The clause was removed because it’s not required by statue. The guidance says contracting officers are free to use this clause or any variation they like based on the instant procurement. In others words it’s discretionary and not mandatory.

13 minutes ago, formerfed said:

The guidance says contracting officers are free to use this clause or any variation they like based on the instant procurement.

Where is that guidance?

42 minutes ago, Vern Edwards said:

Where is that guidance?

I asked a personal friend this question by a text massage. They referred me to FAR 1.102 and the original EO direction that only language required by statue gets included. This clause isn’t required by law.

1.102 Guiding principles for the System.The contracting officer must have the authority, to the maximum extent practicable and consistent with law, to determine how and when to apply rules, regulations, and policies on a specific contract.

1 hour ago, formerfed said:

The clause was removed because it’s not required by statue. The guidance says contracting officers are free to use this clause or any variation they like based on the instant procurement. In others words it’s discretionary and not mandatory.

This is one of the problems with the "statutory" filter they are using for the RFO - even if some language in the FAR is not required by statute, that language could be useful in producing better acquisition outcomes for both parties.

As to whether contracting officers free to use the clause or any variation will do so, I doubt it with the current state of education and training in our profession and the mandate of contract writing systems/clause logic generators that constrain contract writing. Many people will not know to use this clause or others like it (or even that they exist or how to find them post-RFO transition), while others simply will not want to go through the trouble of fighting the system(s) to do so.

Meanwhile, other language not required by statute remains. See RFO FAR 12.304(b)(1) "Before terminating a contract for cause, send a cure notice to the contractor, unless the reason for the termination is late delivery." I had my eye on whether that language (which is in the current FAR at 12.403(c)(1) "The contracting officer shall send a cure notice prior to terminating a contract for a reason other than late delivery.") would stay, go, or be rewritten after a frustrating experience where it constrained our options on an important service contract. I have found no statutory basis for that language/requirement for a cure notice.

At least they're consistent in their inconsistency...

There will be little or no consistency in how to manage variations in estimated quantities if there isn’t a standardized approach. It is necessary coverage for unit priced contracts or line items with estimated quantities that might vary due to difficulty or impossibility to strictly fix quantities, e.g., rock excavation, undercut and backfill, encountering unsuitable subgrade materials, etc.

The interpretation and application of the FAR VEQ clause has been litigated and defined by case law for several decades.

It would be stupid IMO to leave it up to individual KO’s or organizations to write clauses or price VEQ’s. It must be standardized and consistent.

There is no need to reinvent the wheel.

Who are the people editing these sections of the FAR???

P.S. the VEQ clause isn’t applicable to pricing changes in the amount of work that is to be unit priced.. It’s meant for variations between estimated and actual quantities of work that is performed under the scope of the required work. If I want to add additional work, it’s a change

8 hours ago, joel hoffman said:

There is no need to reinvent the wheel.

Who are the people editing these sections of the FAR???

I've met one of the people working on the RFO during my professional travels. This person is smart, well meaning, and highly competent in contracting. I'm not sure this person has ever done serious construction contracting. Probably done just about everything else. Construction contracting is niche, as far as it goes. My first job in the Air Force was as a contract specialist for the simplified acquisition of base engineering requirements. I did it for about 18 months and moved on. I haven't touched construction in the 20 years since. I'm mostly unqualified to seriously engage in construction contracting matters.

What I'm getting at is that there are some parts of the FAR that are idiosyncratic and the generalists working RFO need to bring in relevant expertise. It doesn't sound like they've done that. The required timeline is probably driving that, but I have no insight.

I guess while I'm here, the contracting officer that trained me, when I was a 2nd Lt, was an Air Force Staff Sargent. He knew everything, and I'm forever in his debt. He went on to play some leadership role in the Pentagon renovation that happened post 9-11, and as far as I know he did very well there.

@KeithB18 thank you for your insight and reflection. I agree with you.

Back in 1971-1972, as a fresh Air Force 2LT civil engineer, I was assigned to replace a Captain as the project engineer on a unique, Air Force awarded, Design-Build Military Family Housing Project at Castle AFB in Atwater/Merced CA.

I worked very closely with a Tech Sgt. who was assigned as the contract specialist in the Base Contracting Office. We became good friends. It was a good project.

22 hours ago, Vern Edwards said:

I agree in the general sense of the word commercial. But then we have to ask whether the policies in FAR Part 12 are suitable.

Do you mean policies or the procedures? It seems this is what needs to be sorted out.

21 hours ago, joel hoffman said:

The construction industry requires more time than a couple of weeks to just develop a bidding team, seek qualified, competitive subcontractors and suppliers, determine the scope of work, estimate quantities of materials and work, develop a construction approach, obtain bids, etc. Generally a site visit is necessary to see and also identify the conditions , locations, ask questions etc.

Remember my posts have attempted to put it all in perspective. Its seems all want to morph to the 800 pound gorilla construction service acquisitions. I agree there is huge difference between building a shed and a bomb disposal facility. My intent is to pose that it makes entire sense from my view that using say FAR Part 12 and their companion procedures (subpart 13.5) can make a lot of sense for a shed or better yet someting estimated up to $7.5 million.

16 hours ago, joel hoffman said:

There will be little or no consistency in how to manage variations in estimated quantities if there isn’t a standardized approach.

I would question whether there is consistency now with regard to process and procedures being used to acquire and adminsiter construction service contracts NOW!

1 hour ago, C Culham said:

Remember my posts have attempted to put it all in perspective. Its seems all want to morph to the 800 pound gorilla construction service acquisitions. I agree there is huge difference between building a shed and a bomb disposal facility. My intent is to pose that it makes entire sense from my view that using say FAR Part 12 and their companion procedures (subpart 13.5) can make a lot of sense for a shed or better yet someting estimated up to $7.5 million.

Disagree about an up to $7.5 million project.

Have already agreed here more than once about truly small, simple projects (e.g. a “shed” , painting A building, runway rubber removal, replace windows in A building) or purchase orders to add, fix or replace some real property installed equipment.

As a general comment, I believe using the FAR Uniform Contract Format is about as far away from commercial construction contracting formats as it gets.

MasterFormat is a commercial construction contracting format.

For those wanting to use commercial construction contracting formats, if they can’t figure out how to use MasterFormat, they shouldn’t be doing construction contracting for anything more than the small, simple stuff.

It’s already obvious to me that whoever is in charge of the re-write doesn't know much, if anything about the actual workings of construction contracting. The voluntary VEQ language is a glaring example

It’s the Wild West approach, lacking any consistency and ignoring long held case law.

read somewhere recently where the rewrite process can include non-statutory language that is necessary to promote efficiency, consistency or avoid problems…

Edit: the FAR Part 43 is an example of including non-statutory but essential language. For instance, the Changes Clause and bilateral application are not statutory.

Is there a “comparator”, somewhere, that has the existing and new FAR language side by side , similar to the FAR Part 15 rewrite in 1996-1997.

Edit: I see that there is a “practitioner album”with some “summary of changes” and “line out” of the sections. However, in reading some of the line outs they leave incomplete sentences in many instances and completely delete scope of the part and paragraph titles.

Edited September 8, 2025Sep 8 by joel hoffman

On 9/6/2025 at 8:22 AM, joel hoffman said:

Is there a “comparator”, somewhere, that has the existing and new FAR language side by side , similar to the FAR Part 15 rewrite in 1996-1997.

Edit: I see that there is a “practitioner album”with some “summary of changes” and “line out” of the sections. However, in reading some of the line outs they leave incomplete sentences in many instances and completely delete scope of the part and paragraph titles.

Joel,

I've been creating line-in line-out versions of the changes and posting them on my web site: www.donacquisition.com.

51 minutes ago, Don Mansfield said:

Joel,

I've been creating line-in line-out versions of the changes and posting them on my web site: www.donacquisition.com.

Thanks, Don!

On 9/5/2025 at 1:07 PM, formerfed said:

The guidance says contracting officers are free to use this clause or any variation they like

Agency supplements, however, restrict or control contracting officers' ability to use their own clauses, see DFARS 201.304(4), for example. So agencies would likely have to incorporate this clause back into their own supplements to make it usable without individual approval each time.

2 hours ago, Witty_Username said:

Agency supplements, however, restrict or control contracting officers' ability to use their own clauses, see DFARS 201.304(4), for example. So agencies would likely have to incorporate this clause back into their own supplements to make it usable without individual approval each time.

I think you’re missing the point of my post. The clause in question is an existing FAR clause that’s mandatory for use. The FAR overhaul is making the clause optional. So a contracting officer may decide to use the clause if they like it but it’s not required. They wouldn’t be making up their own clause and agencies wouldn’t have to incorporate back into their supplements.

On 9/9/2025 at 3:48 PM, formerfed said:

I think you’re missing the point of my post. The clause in question is an existing FAR clause that’s mandatory for use. The FAR overhaul is making the clause optional. So a contracting officer may decide to use the clause if they like it but it’s not required. They wouldn’t be making up their own clause and agencies wouldn’t have to incorporate back into their supplements.

Ah, I was understanding the RFO to have removed the clause from the FAR entirely, throwing it into the realm of agency or local clauses. If it remains optional that would be much easier to deal with.

2 hours ago, Witty_Username said:

Ah, I was understanding the RFO to have removed the clause from the FAR entirely, throwing it into the realm of agency or local clauses. If it remains optional that would be much easier to deal with.

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