joel hoffman

i agree in this case. The ceiling must have been established before the fee and share ratios were established. The overrun share ratios make the ceiling cost irrelevant here.

Wouldn't the final price be the actual cost of 68 million with an absorption of 100 percent of the fee ($7 million) for the overrun plus absorption of the additional loss of ($7 million - $8 million)? This is because the contractor agrees to absorb 100% of costs in excess of the target price and the government agreed to absorb none of the excess costs. The excess is covered by the fee plus $1 million in cost overrun in excess of the fee. Thus the final price will be $68 million, minus $1 million, equals $ 67 million. Contractor is paid all costs less $1 million plus no fee. The contractor will absorb a $1 million loss and earn no fee.

You are welcome, TC. Im so used to using Master Format that i havent thought mucH about it. Those were good questions you brought up. Part of my job over the past 32 years with the Corps has been resolution of contract interpretation issues and claims I was very lucky to obtain a copy of the "Administration of Federal Contracts" book back in 1981 or so. Somebody stole ithat one in Saudi Arabia in 1983 so it must have been popular with contractors, too, . I had to replace it ASAP and locked it up! Good luck!

Thanks for the article, Vern. That may partly explain my observation of what happened in our case. Gosh, it is pervasive. While perusing the "Cosco Connection" magazine at my daughter's house in Gig Harbor, today, I read a review of a n article advising about The "The New Rules of Social Business" , stressing the importance of putting down the phone, turning off electronic devices, closing Twitter and Facebook during meetings - - and limiting any meeting to 20 minutes or less if you intend to hold your team members's attention. Sheesh.

This is another reason not to use the FAR clause "Order of Precedence" in USACE construction contracts. Those contracts are required to use the CSI Master Format. The various construction contract clauses distinguish between "specifications" and "drawings", as do the various claims decisions that deal with them.

TC, If you are arguing anything in a KO's Decision, I certainly hope that you would: 1) seek the advice of your USACE District counsel on this and other legal questions and, 2) Purchase, READ and use the George Washington University, Government Contracts Program Textbooks that Professors Ralph Nash and the late John Cibinic wrote with others. I especially recommend "Administration of Government Contracts" and "Formation of Government Contracts". Good Luck

I don't know why the MATRIX was included in EFARS 14, other than to illustrate to those who are used to the Uniform Contract Format what the corresponding layout is under the CSI Master Format. That format was from long ago in the early 1990's (I think that the last edition was "Master Format 1995") . Master Format was totally updated and revised by the Construction Specifications Institute in 2004 and adopted by the Tri-Services Specifications Committee several years ago for the Unified Facility Guide Specifications (UFGS). Vern, "Division 01" refers to the Specification sections for various general conditions in construction contracts. Division 00 contains the various pre-award provisions, the RFP or IFB, (RFP) eval criteria and basis of award, wage rates, contract clauses and special provisions, etc. I think that there are now somewhere around 41 to 43 Divisions, in place of the old Division 0 through 16 breakdown of the CSI Master Format 1995 contract format.

TC, according to Nash and Cibinic's "Administration of Government Contracts, 4th Edition", the common law order of precedence rule is used in Government contracts when a specific order of precedence clause is not applicable. The general rule of common law is that specific provisions will rule over general provisions and that written or typed provisions will prevail over general provisions, Restatement, Second, Contracts § 203 ( c) and ( d). See page 179 of the reference. On page 180 it states that the "general rule of common law does not apply where a specific provision conflicts with a standard government contract clause that is required by statute or regulation." Reading further on page 180, in discussing an ENGBCA decision in Hydracon Corp., ENGBCA 3462, 75-2 BCA ,¶ 11,489, The Board said "It is an established canon that standard clauses for Government contracts, which are required by law and by regulations having the effect of law, cannot be contradicted by other specially drafted provisions so that they are, in effect, written out of the contract or subordinated to such special provisions." You also said: TC, I disagree with your position that deviations in a proposal should take precedence over the original performance or prescriptive specifications. In USACE Design-Build contracts, the "new" O.O.P. clause I mentioned above will state, in the event of a conflict between the accepted proposal and the solicitation requirements: "... ( b ) In the event of conflict or inconsistency between any of the provisions of this contract, precedence shall be given in the following order: (1) Betterments: Any portions of the accepted proposal which both conform to and exceed the provisions of the solicitation. (2) The provisions of the solicitation. (See also Contract Clause: SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION.) (3) All other provisions of the accepted proposal. (4) Any design products including, but not limited to, plans, specifications, engineering studies and analyses, shop drawings, equipment installation drawings, etc. These are "deliverables" under the contract and are not part of the contract itself. Design products must conform with all provisions of the contract, in the order of precedence herein." There is a well established principle of Federal procurement, stated in many protest decisions, that a proposal, in order to be awardable, must comply with all and not deviate from any material requirements of the solicitation. There is discussion of this in Nash and Cibinic's "Formation of Government Contracts" (I only have the Third Edition). See Chapter 6, Basic Negotiation Procedures, under "Non-Conforming Offers" , starting on page 781 in my Third Edition. On page 781 Nash and Cibinic say If a proposal contains a deviation that the government would like to accept, "[t]he government may not award to that offeror but must amend the [solicitation] to permit other offerors to propose to the deviation." See Labat-Anderson, Inc., 71 Comp Gen. Dec. B-244559.3 93-1 CPD ¶ 193. I will reiterate that you should not use the FAR Order of Precedence Clause in the USACE, CSI Master Format, construction contract format. It is written for and specifically prescribed only for us with the Uniform Contract Format, not for Master Format. By the way that MATRIX in EFARS 14 is obsolete anyway. It refers to an old edition of the CSI Master Format. In addition, EFARS never said to include the clause or the clause with the Matrix.

you also posted this under another thread at http://www.wifcon.co...ry16699. There, I replied: "Because different rules apply to different types of set-asides, please explain what type of set-aside this is and what provision or clause is used to limit subcontracting. Thanks."

Because different rules apply to different types of set-asides, please explain what type of set-aside this is and what provision or clause is used to limit subcontracting. Thanks.

It is common. I never found it to be an issue. Participants are there to provide their input and expertise. If someone susupects a problem, they should discuss it privately with the prospective subordinate and find out if it might pose a problem. If so, they shouldn't be required to serve.

Brian, my post above wasn't concerned with TINA or "data other than cost or pricing data". The premise was that it can be determined that there is "adequate price competition" even when only one quote or proposal is received. Among other things, the government must consider the quote reasonable in that event. Here, the agency didnt think so. Another good point made here is that it seems that the requirement wasn't clear enough for a meeting of the minds on the level of effort required to meet them. Perhaps negotiations could have resolved scope and price issues - perhaps not. In this case, nobody else even quoted. I don't know if it was evident that the prices were not expected or intended to exceed $150k. Unfortunately, from my experience with gov't acquisition personnel in general, many are often reluctant to directly discuss price in negotiated acquisitions, let alone scope. This is not specifically directed at the 1102 community, it includes other disciplines associated with acquisitions as well. My latest experience was an urgent need last summer to hire construction scheduling expertise for the government on a high visibility project that was going South, so that the government could work with the contractor to get the schedule back on track. The project HAS to finish within a mandated limit. It took over 3 weeks to contract with one firm from the GSA schedule - after receiving the requested quote or proposal. Nobody would CALL the firm and negotiate an acceptable and affordable scope of services within the simplified acquisition price limit. Despite the firm's willingness and attempts to talk directly, it was handled by email at a snail's pace. I was finally able to get the folks responsible to CALL and work out the details. Meanwhile, the impact on the job was tens of thousands of dollars per day for lack of a working schedule. The scheduler contract was within the simplied acquisition limit.

Perhaps, as ji alludes to, the official meant that there was not adequate price competition, as described in 15.403-1©(1) and in 15.404 because they didn't consider the price to be reasonable.

Not to my knowledge, Inelhutz. That is an internal teaming issue.

I would agree that this is a good requirement. I wonder if JAmes Cobb is discussing an existing contract or a new one.

Vern, I agree. I meant to say that a contractor might not be able to obtain workmans compensation or liability insurance without being licensed in that state. And Brian mentioned bonding, too. In addition, since subcontracts are generally written around state jurisdiction, state licensing law might require a prime to be licensed. I don't know. I used to ask the lawyers. Generally, local building permits are not required for new building construction or building improvements on federal property. However, the US Government has waived federal immunity and has consented to outside regulation for certain requirements, such as Hazardous Waste, Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Hazardous Substances, stormwater discharge permits, ground water protection, air pollution, noise pollution and other environmental issues. States have been delegated enforcement and administrative authoirty for many of the environmental laws. If various permits are required e.g., sewer, water, stormwater, water quality, etc.) I know that DoD usually abides by them. Some of those requirements apply to buildings.

Vern, I based my thoughts about what type of work that Boof's organization would want a "PMO" contractor to do on Boof's message #8, which attempted to clarify the imprecise language used in message #1. Unfortunately, Boof deleted message #8 after you said that Boof released too much specific information and suggested that Boof delete it. It would be nice if Boof was clearer. Without any more information, I felt that they were looking for an integrator, not a contractor to simply look over the shoulders of the 6 other firms. I may well be wrong. I can't interpret message #1 from the language used.

I agree - but I don't think it is "COR" work, if that means "Contracting Officer's Representative". Unless I misread the now deleted descriptions of the various contracts, It appeasrs to be management, control and integration of those many interrelated Programmatic Work Breakdown activities.

We dont know what your contract Termination For Convenience terms are. It would seem that such terms would allow the prime to terminate you for its convenience without breaching the subcontract. You would seemingly be entitled to whatever compensation that the subcontract TFC provisions provide for. We don't know what monetary impacts to the work you have performed that you could attribute to the actions of the Prime.

I don't know whether or not state licensing law would apply. But you can ask the Secretary of State's Office or the applicable state office whether a contractor's licebnse is required to do business within a state. The contractor would normally have to maintain valid liability and workmen's compensation insurance in the jurisdiction and probably pay certain taxes for work in the state.

What does "a PMO cloud over them and coordinating all thier efforts" mean? It would take one heck of a COR organization to coordinate the "efforts" of 6 different contractors, if the 6 must interact and respond to each other or to schedule the "efforts" of 6 separate firms to meet missions as they develop.

Don, I will let Boof respond but I see some possible differences. Boof used a lot of colloquial language and terms in the first post, including "ride herd over the other 6 large and small prime contractors, do all the admin work for deploying the other contractors" and "ensure the other contractors stay on schedule". It depends upon the specific meaning of the terms, but those appear to be true management activities, not often performed by the government as part of it's contract administration role. I don't know what "ride herd" means. But from the individual contract scope descriptions that Boof deleted, it appears that there needs to be a management entity to schedule, coordinate, direct and otherwise integrate the overall program work among different contractor's that may depend upon other's timely and effective performance. COR duties are more related to assuring that the Contractor's are performing what's required but not usually interating, coordinating, scheduling and directing performance of various individual contractors that must often rely on each other to make the whole program work. Those are typically prime contractor roles and functions - in my opinion. In the Corps of Engineers' world, we distinguish between "quality control", which is the Contractor's responsibility and "quality assurance", which is our responsibility. Controlling the quality of work and maintaining interrelated schedules of subcontractor's is inherently a prime Contractor's role. Assuring that the Contractor is effectively performing its QC and management roles would be an owner's COR duty in our world. Regardless of what terms are used for QC/QA functions, I think that the contractual roles are similar to what I described. It would be very difficult, in my mind, for an independent contractor to try to manage the work, schedules, integration, interaction, control quality, etc. of many other individual contractors performing interdependant.work. It looked like some of the above (but now deleted) scopes that Boof described were independant of others, while some were interdependant, requring an entity to integrate management and control of the various performers, whether they be contractors or subs.

duplicate post.

Please clarify to the extent that you can what the nature of the individual contracts would be and how much interaction between contractors there is is. For instance, how interdependant, interactive or independant is the work? Do the schedules of individual firms rely upon the schedule and activities of other contracts ? Are they for segregable activities? etc.

For construction contracts or for design-build construction contracts where the firm prepared the design criteria, see FAR 36.209.