joel hoffman

On 8/11/2024 at 12:48 AM, Jamaal Valentine said:

There’s around 52 days left and the question was presented to Wifcon…do you feel confident the team has time to understand, implement, get approval, and execute your plan? (“the client is allocating 2 weeks for proposal submission and only 11 days for award.”)

It shouldn’t take 11 days to award one or even three separate contracts if they only ask for price proposals under one solicitation. The extra time could be used for submission of bids/proposals.

Our COE District was receiving price only* year end proposals for multiple maintenance/repair and minor construction contracts in Panama in the 1990’s, which were advertised subject to availability of funds.

Many were within the last week of the fiscal year. US Southern Command couldn’t make funds available to the F&A office until they were able to determine that how many O&M funds were still available.

Our Contracting/F&A/legal offices were busy awarding contracts up to midnight on the last day of the FY. The contractor community was well aware and onboard with the situation every year.

This was prior to implementation of full electronic contracting and accounting systems

*OCONUS May use price only RFP’s. 

3 hours ago, formerfed said:

Here’s an idea - use an award term contract.  You could employ a variety of factors including employee retention where a contractor can earn additional periods of performance for meeting or exceeding goals.  Here’s an article Vern Edward’s wrote  Award term

Theres data showing many companies are motivated more by continual performance than greater profit/fee.

I agree with you. 

On 8/9/2024 at 4:33 PM, Jamaal Valentine said:

the period of time between publication of the synopsis notice and receipt of offers must—generally—be no less than 40 days

Ok, so what? Publish the synopsis at least 40 days before the receipt of offers/quotes.

And why not publish a preliminary draft of the solicitation requirements with the synopsis stating that it is for preliminary information only and that there will be an expedited period for submitting offers after issuing the final solicitation.

This could include a statement encouraging interested parties to start organizing and seek team members, etc.

It may be out of the ordinary to maximize the opportunity to publicize the upcoming solicitation and critical schedule for offers and award. The agency might not be able to adapt anything other than doing “business as usual”.

EDIT:

See, for instance, FAR 15.201 “Exchanges with industry before receipt of proposals” for some ideas and methods to notify and communicate with and familiarize industry with upcoming solicitation and short periods for submission and award.

If using simplified acquisition procedures in FAR 12.202,  FAR 13.5, I don’t think that the KO is prevented from considering using applicable tools and methods described in 15.201. 

On 8/8/2024 at 12:16 PM, Retreadfed said:

I don't know what your contract says, but have you considered what, if any, effect 31.U.S.C. 1342 has on this situation?

@Retreadfed we can’t seem to get flustered to state what the contract  specific period of performance is defined as for their contracts. Flustered did state that the periods of performance for two contracts have expired.

So, I will guess that the government can’t unilaterally require that Flustered  continue to provide construction advisory services after the period of performance for such services has expired.  

It’s apparently commercial services. So they can use simplified acquisition method under 13.5. They could probably seek bids or price only proposals/quotes if they don’t need to do a technical evaluation and instead rely on a responsibility determination under FAR 9.1 of the lowest price.

Am I correct about that?

I still think they ought to expedite the preparation of the solicitation to provide a longer lead time.

I have a feeling that it may be  it’s a “business as usual” effort. 

Wow, this appears to be a technically challenging scope of work. The solicitation, short response and evaluation times don’t look reasonable to me.

i suggest expediting the preparation of the solicitation package. And, if possible, publicize a draft solicitation. 

@lawyergirl Another suggestion is the requirements team could work overtime to expedite preparation and issuance of the solicitation.

Our USACE Division Commander once ordered Engineering Directorate to direct our Program A/E to work whatever overtime necessary to expedite designs for massive engineering change proposals. This was to minimize time/schedule and rework impacts to the active contracts for construction of large Chemical Weapons Disposal Plants.

Both Engineering and the A/E resented the overtime work but it was absolutely necessary. Both Engineering and the A/E had little understanding of the time impacts of ECP’s and were used to taking their sweet time in issuing designs and design revisions.

Your client might be very resistant to the idea of expediting the issuance of the solicitation or to providing advance notice/draft version for industry notice and familiarization.

Our A/E contract was cost reimbursement, long term (decades). The construction portion of the Systems contracts affected by ECP’s for the various plants were FFP, after previous CPFF contracts for the earlier plants of similar design.

This shift from CP to FP construction contracts in the on-going, evolving program required a massive mental shift and learning curve by all involved government agencies, including ours as well as the A/E and state regulatory agencies.

@lawyergirl Any Synopsis/pre-solicitation notice should amply precede your agency’s solicitation date. If possible, they could also publish a draft of the requirements/ preliminary solicitation, etc. for information only.

I will echo formerfed’s inquiry for more details - without any idea of the scope of what your client is planning to buy, we are mostly throwing darts at a huge target (universe of acquisitions)..

But see 5.203 (c) for commercial products (supplies) and services:

“c) Except for the acquisition of commercial products or commercial services (see  5.203(b)), agencies shall allow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold.

(d) Agencies shall allow at least a 30 day response time from the date of publication of a proper notice of intent to contract for architect-engineer services or before issuance of an order under a basic ordering agreement or similar arrangement if the proposed contract action is expected to exceed the simplified acquisition threshold.”

4 hours ago, lawyergirl said:

There are many parties interested in participating in the solicitation, so this will not be an easy task for the Government in terms of review.

Another reason to consider price only IFB and also to allow industry to bid on one or more than one bid schedule.

This might also facilitate effective price competition.

Can they issue an Invitation for bids for a single contract award - with price only factor(s) ? 

Also, does it have to be a single contract or can the government reserve the right to make one or multiple awards from the single solicitation? 

A task order would require multiple awards of a base contract then the task order(s). That doesn’t seem to be very practicable for such a short deadline. 

58 minutes ago, Flustered said:

But, for the project where the bond company stepped in to finish, there have been long lapses in period of performance coverage. Right now, we are in an expired PoP status. 

On another project in which our PoP is expired, the Builder is very very slow. This project is years behind the original construction end date. But no bonding company. 

It appears to me that you may have no further duty to perform any further services if your stated period of performance has expired.

But it depends upon the totality of the contract language. 

This feels like trying to squeeze blood out of a turnip!! 
 

36 minutes ago, Flustered said:

So far, the defined period has been our period of performance.

What is your period of performance as stated in your contract/task order for services during construction?????? Is it now past the “period of performance”? 

37 minutes ago, Flustered said:

My question is if our initial AE period of performance is tethered somehow to the Builder's initial period of performance.

How can we know that? What does the contract say about the period of performance for your services during construction ? I don’t know how you could price the duration of those services if the time is indeterminate…

Without knowing all the facts and the contract language, we can’t provide definitive answers to your questions. 

Ok, so there are defined line items for the services during “ a defined period”.
What is the defined period? 

Thanks, Carl. 

Flustered and others here, please note that the bonding company is liable for additional government damage costs, including additional costs to extend the “Title II” (obsolete term) services during construction by the separate A/E firm.

i don’t know if the government can actually use those payments by the surety, though. Generally, any payments go to Treasury*  I don’t know but doubt that the surety can directly pay the A/E (supplementing government appropriations).

I once received a check from a surety on one of our construction contracts for over $400,000 in liquidated damages as part of a Default settlement . *However, it had to be deposited with the Secretary of the Treasury. 

10 hours ago, general_correspondence said:

typically the PoP on task orders out live the life of the IDIQ, for example if the IDIQ was a 5 year and the task order was awarded in year 4, and your order is now 2 or 3 years beyond the IDIQ PoP, the Task order would still be in full force.  However it sounds like you and the government may have had plenty of time to close out the FP Fixed work. I'm just guessing and possibly suggest open a Time and Material contract, it would minimize your billing to RFI' and actual design work from the general contractor

The A/E is performing any design work for changes, not the construction contractor (“builder”).

This is an A/E task order which includes the described A/E services during construction.

It might also be a separate task order for A/E services during construction on a project that the firm designed under a separate task order.

At any rate, the original poster doesn’t seem to be familiar with the time terms of the task order or the price breakdown structure of the “firm fixed price” task for performing the services and the basis for payments.

Normally, if a construction contract is significantly delayed, the government would extend the period of performance for the A/E’s services during construction under its separate contract.

After rereading a follow-up post by @Flustered, he or she said that the former KO did just that.

The original construction contractor apparently defaulted and was replaced.

“But, the former contracting officer transitioned away from this project. The new contracting team seem reticent to extend performance and compensate for time impacts.”

There lies the underlying problem. It would “seem” that Flustered has a recourse here for reimbursement for additional costs and/or compensable time extension.

We can’t answer Flustered’s initial question other than to say “generally, no” or Flustered’s “larger question” without knowing what the actual  terms of this contract task order are concerning required length of performance:

Flustered said:  “The larger question that keeps arising in many threads is what does period of performance mean? It may be one term of many in a contract, but seems very relevant at expiration.” 

4 hours ago, Vern Edwards said:

I suggest that you read the NYT interview with Justice Gorsuch.

Thanks, Vern. I don’t have a subscription to The NY Times. Here is an August 4 Fox News Sunday interview with Justice Gorsuch.  He appears to have said similar things.

https://www.foxnews.com/video/6359892907112 

Fox News Sunday August 04, 2024

06:48  CLIP

“Neil Gorsuch: Too many new laws could impair Americans’ freedoms”

“Trump-appointed Supreme Court Justice Neil Gorsuch joins ‘Fox News Sunday’ to discuss the downside of having too many federal laws.“

On 8/2/2024 at 4:15 PM, joel hoffman said:

Those were most likely Invitations for Bids - IFBs. I don’t know what you mean by  “delivery of the construction project “ in this context. 

In the pre-FAR and pre-RFP days, the Corps of Engineers Districts’ Engineering Divisions would typically provide “Procurement and Supply” with a complete set of plans, specs and clauses, etc. to advertise for bids. The District Engineer or one of their Deputies was the KO. The military officers were usually a Colonel, LTC or Major and were engineer officers. The KO’s shifted to 1102’s in the early 1990’s.

Most construction contract solicitations shifted to RFP source selections in the late 1980’s to early 90’s.

P&S were the KO’s for supply, services  and real estate contracts.

If that isn’t bad enough, what about subcontractors and suppliers, who may or may not even be provided access to the prime contract or solicitations. 

2 hours ago, dsmith101abn said:

 

I couldn’t find an electronic copy but read a hard copy procedural manual from 1970.

Construction projects used to take 3 days to post a solicitation between the time the requirements were provided to contracting to the time it took to post a solicitation. Award time was 10 days between delivery of the construction project to award. It’s 90-120 days now.

Those were most likely Invitations for Bids - IFBs. I don’t know what you mean by  “delivery of the construction project “ in this context. 

14 hours ago, Flustered said:

Hi Joel, neither the original task order nor bilateral mods have this information. There are no payment line items for all the applicable services--nothing like that at all. This might be a different contract breed, who knows. thanks for your help and interest. 

 

@Flustered, it appears that you aren’t directly involved in the negotiation, execution or administration of the A-E contract. There has to be a basis for making and receiving payments for the applicable services.

If there are no separate contract line items or specific identification in the contract or task order prices, these would likely have been defined or determined in a breakdown of the contract price (fee). This should occur during negotiations of the contract and task order(s) prices and during performance of the services.

It appears that you can’t determine the basis of the task order pricing or the defined period of performance including the calendar dates that requires A-E to provide (the various) services.

Therefore, I don’t think anyone here can answer your question other than to say, generally not.

On 7/31/2024 at 6:49 PM, Flustered said:

can the Government legally expect AE’s like us to provide advisory, construction period services for the Government, in what feels like perpetuity?

By the way, the contract for the A-E firm on the Category I, Major Defense Program for the Chemical Weapons Demilitarization to eliminate our Nation’s chemical weapons stockpile  lasted for multiple decades.

The A-E contract was very profitable. This included design, executing Engineering Change Proposals and maintenance of the Design Configuration Management through the design, permitting, Construction, Systemization, Operations and Closure phases of various Chemical Weapons Demilitarization Plants at multiple CW Storage sites in the U.S. and Johnson Island in the Pacific.

It provided attractive, substantial on-going business for the A-E firm. The Program was frought with decades of slippage for various political, environmental, technical, etc. delays. Numerous extensions of the Chemical Weapons Elimination Treaty with Russia have been necessary.

I worked on the CW Program for ten years, involved with eight of the ten US plants. Two of my employees had involvement with the Russian plant that the US was building. 

1 hour ago, Flustered said:

Requires A-E to provide services for a defined period of performance using calendar dates.

Please quote the exact language concerning the defined period of performance including the calendar dates that requires A-E to provide ?? Services.

It would to helpful to please quote the payment line items for all of the applicable services.

If the KO won’t extend the dates of the services, and provide additional compensation, then the Government might be in breach of contract.  

15 hours ago, Flustered said:

Without any realistic end date in sight, can the Government legally expect AE’s like us to provide advisory, construction period services for the Government, in what feels like perpetuity? It seems unfair, given neither the AE nor the Government are to blame for the construction delays. 

My inclination is to say no, but what is your contract obligation for services during construction? That’s what I’m asking above.

What are the scope of services during construction and the basis of pricing for such services in your contract?

In other words, what are the specific contract terms and conditions for A/E services during construction , including efforts as well as payments for those efforts?