joel hoffman

Sending instructors to the students, in locations where most of attending students would not require travel expenses, would be a superior option to distance training, in my opinion. True, when students are homogeneous, there wouldn’t be the same amount of interaction and cross-talk between students from different organizations or localities. However, the in-class interactions and synergies are much more effective for both instructors and those students who are serious about the training topics than isolated, on-line learning, with all of the distractions and reduced student accountability. There should still be some opportunities made available for some students from out of town or different local organizations in Urban areas to fill the classes. But travel costs could be greatly reduced and still provide the advantages of in-person, face to face training. Of course, I’m a dinosaur who doesn’t believe that teleworking improves organizational efficiency or promotes high performance. After I retired, I was a rehired annuitant for a decade, mostly working from home, on a highly important National and International Army program I had been on when I retired. I didn’t have a mandated, regular work schedule. I was only paid for the actual hours worked. I had to submit time sheets bi-weekly. Being conscientious, I kept detailed daily notes of those hours worked and what I worked on for my timesheets. I didn’t charge for breaks, distractions, other activities, etc. But I made myself available with in my waking hours to Corps of Engineers offices/persons across many time zones. Those are advantages of not having a prescribed telework schedule for an honest, experienced employee. However, I could easily have falsified my timesheets, if I had been on a mandated work schedule. There are many distractions to a work life from home. I also missed the synergies of in-person, face-to-face human contact.

This brought to mind a story of a group of persecuted Christians somewhere in the Middle East. Radicals had lined them up at gunpoint and said they could live if they denied their faith. The question was asked of each person, with a gun pointed at their head. All of the persons except the last one denied their faith. The last one refused, saying they were ready to die for their faith. Then the terrorists shot everyone except the last one. The stated reason was because he was the only honest one. Maybe this is a test to determine who is really competent by using their brains and good business judgement to reason, rather than those KO’s who would simply quote irrelevant background information in a letter to contractor(s), because they were told to.

Of course, I wouldn’t sign a letter with the quoted wording. The details and blame are irrelevant to the necessary action that I would be directing.

@Weno2 Was there a directive to use that wording in letters to contractors? If so, who signed the directive?

The Statutory coverage of design-build authorization implemented in the current FAR Part 36 requires competition , not sole source or design, then contract to build. I agree about lack of FAR coverage for Design-build procedures and the unique roles and responsibilities of the design-builder and the government in DB. In fact the FAR Part 36 council stated during the comment period for adding the Two-Phase DB procedures to Part 36 that this was beyond the scope of the FAR implementation of the legislation. Plus, the contracting and legal members had no independent knowledge of the distinctions between roles and responsibilities of the parties for DB and DBB. They actually stated that they didn’t think any coverage of the revised R and R was necessary. I know because one of our HQUSACE Counsel was the lead on the DAR committee for Part 36 at the time. She helped me write the coverage that we developed for Corps of Engineers DB contracts. We also adapted some earlier coverage that DB pioneers in the USACE developed in the late 1980’s. So we developed the coverage for our Corps of Engineers DB contracts almost 30 years ago. We have taught this material Corps-wide in our Design-build course since 1997. But under the current regulatory climate, if it’s not statutory it won’t be in FAR. Guess what - our contract coverage of the unique roles and responsibilities of the parties mirror that of the Design-Build Institute of America for competitive DB. There are many differences between Design-Bid-Build and DB. Anyway, an acquisition for a sole source or competitive DB project generally wouldn’t be conducted at a point where there would be much if any cost or pricing data that could be certified available, unless the sole source had to design most of the project before submitting a price proposal for construction. I was one of the first two Government Employees to achieve DBIA (Design- Build Institute of America) Designation as a “Design-Build Professional” about 25 years ago. I was a member for about 25 years. .

Yes apparently most anything these days is then “commercial” under that definition. I agree with Vern. . My point is what do you expect to gain by using a Part 12 contract format for anything other than simple little jobs and individual equipment installations or replacements? The CSI (Construction Specifications Institute) Format thst the Corps of Engineers uses is a commercial standard contract format in lieu of the UCF . The standard FAR construction contract clauses are similar to those typically found in commercial and state and local government construction contracts. Why reinvent the wheel? I was a consulting engineer for local government and private commercial customers over forty years ago. Our contract formats were standardized too and similar to the CSI format.

Of course, there are some exceptions to the application of the methodology in the VEQ clause. The concept is that both parties have agreed to a unit price that is part of. The bargain. But if the government, through gross error or negligence, inserts an estimated quantity that bears no resemblance to the actual scope of work, the boards have sometimes held that the contractor was not held to the Unit price for vast overrun; sometimes the Differing Site Conditions clause was applicable, etc.

Thanks, WifWaf. If any reader here is a current USACE employee, would you please send me a personal message? I think that it would be important for HQUSACE to bring the issue and importance of including uniform application of the Part 52 VEQ clause and the implementation language in Part 11 to the attention of the OFPP and FAR rewrite team. Before retirement, I was one of the USACE proponents for consistent interpretation and application of the VEQ clause, which stemmed from The “Victory Construction” Court case and later affirmation by Federal Circuit case, Foley Co. v. United States, 26 Cl. Ct. 296 (1992), aff’d, 11 F.3d 1032 (Fed. Cir. 1993) and subsequent Case Law (e.g., Thermocor, Inc. v. United States, 1996 U.S. Claims LEXIS 68 (Cl. Ct. 1996). I don’t have contact with the current contract admin leadership at HQUSACE We provided and taught guidance for standard contract admin procedures applicable for both underruns and overruns outside the 85-115% range of estimated quantities.

Sheesh, such ignorance by whomever made the change. Unfortunately, I was ignorant of the proposed change. Shame on me. Well, I hope that the Army Corps of Engineers has enough sense to restore the clause and implementation instructions in at least their procedures but preferably at least at Army level.

Don, thanks. I agree. Is it too late to correct this blunder?

In the initial or final proposal, which once accepted, is incorporated into the contract upon award ?

Ineptitude (ok, a “mistake”?) to say that the KO can use a clause that doesn’t exist. Is every KO or Organization supposed to reinvent the wheel and invent their own clause to cover ranges of overruns and underruns of unit priced line items and include their own clause and implementation guidance in a FAR supplement? One of the purposes of the FAR has been to have uniform and consistent contracting policies. I will repeat - some new FAR coverage has included non-statutory language where deemed necessary for good practices. Case law has defined the interpretation of the present FAR clause.

I don’t remember every firm that signed only with reservations but you are probably right. Edit: The last one I was directly involved with was a large business civil works contractor, Granite Construction, 12 or 13 years ago.

We occasionally had contractor’s whose legal departments’ policy was not to sign a release. The usual excuse was that the impact of cumulative effect of changes couldn’t be pre-determined. Then we’d get the REA at the end of performance. Raytheon was a prime example. They “tried” but had zilch of a case to support it. . That’s another story…

Vern, if you mean, after completion of negotiations and agreement, sending the mod unsigned mod to the contractor to sign and return, I suppose that may be considered an offer to settle, although the parties have already settled the issue through negotiation or a proposal and acceptance of the proposal by either party. .