joel hoffman

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

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.

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!

The problem with the Government formally "ending the acceleration" is that it could make the Government responsible for managing the schedule, determining when the Contractor is back on schedule, then immediately sending notification to stop the acceleration efforts. The Government would have to have near "real time" schedule information, which is almost impossible even for a sophisticated contractor to maintain. Construction contractors don't update the progress schedule daily, except on huge jobs with critical schedule constraints, such as a Nuke or Fossil Fuel Generating Plant shutdown or the like. Most jobs that fall behind schedule don't even have that sophisticated project controls capability. That's often part of the schedule delay problem in the first place. The Government would have to have near immediate access to the schedule by a qualified project controls, schedule specialist - which most government offices don't have. Keep the Contractor responsible for getting back on schedule and for substantiating that it is back on schedule. It can manage its own costs, resources and processes that way. If the Government doesn't agree that the project is back on schedule it can reassert its authority to direct continuation of acceleration efforts.

If you are interested in obtaining a rating as soon as possible for substantiation of your past performance, from the time frame described above, it is all the more important to inquire as soon as possible after completion of a contract or order. If you feel that the government is well satisfied with your performance, they may well be very cooperative in speeding up the process. From experience I can tell you that some offices don't consider the evaluation a high priority in comparison with other work. However, if requested or coaxed, they may be very cooperative.

Are you referring to the Navy's contractor performance assessment rating system or to performance evaluations in general? I believe that agencies have their own internal requirements for timeliness of contractor performance evaluations. Yes, I would think it appropriate, if you don't receive a rating after 90 days of a task order end date, for you to start asking and pushing for one. However, due to the length of time involved in writing, review, notifying you, getting your response, if any, then reconsidering and posting, why wait that long? I'd inquire as soon as possible after task order if the government is working ion it and when they expect it to be ready for your review. FAR 42.1502, in general, pushes for preparation of the evaluation as soon as possible upon completion of the contract, job order or task order to use for source selection purposes. (a) Past performance evaluations shall be prepared as specified in paragraphs ( through (g) of this section at the time the work under the contract or order is completed. In addition, interim evaluations shall be prepared as specified by the agencies to provide current information for source selection purposes, for contracts or orders with a period of performance, including options, exceeding one year. These evaluations are generally for the entity, division, or unit that performed the contract or order. The content of the evaluations should be tailored to the size, content, and complexity of the contractual requirements. ( Except as provided in paragraphs (e), (f) and (h) of this section, agencies shall prepare an evaluation of contractor performance for each contract that exceeds the simplified acquisition threshold. (c ) Agencies shall prepare an evaluation of contractor performance for each order that exceeds the simplified acquisition threshold placed against a Federal Supply Schedule contract, or under a task order contract or a delivery order contract awarded by another agency (i.e., Governmentwide acquisition contract or multi-agency contract). This evaluation shall not consider the requirements under paragraph (g) of this section. (d) For single-agency task order and delivery order contracts, the contracting officer may required performance evaluations for each order in excess of the simplified acquisition threshold when such evaluations would produce more useful past performance information for source selection officials than that contained in the overall contract evaluation (e.g., when the scope of the basic contract is very broad and the nature of individual orders could be significantly different). This evaluation need not consider the requirements under paragraph (g) of this section unless the contracting officer deems it appropriate. (e) Past performance evaluations shall be prepared for each construction contract of $650,000 or more, and for each construction contract terminated for default regardless of contract value. Past performance evaluations may also be prepared for construction contracts below $650,000. (f) Past performance evaluations shall be prepared for each architect-engineer services contract of $30,000 or more, and for each architect-engineer services contract that is terminated for default regardless of contract value. Past performance evaluations may also be prepared for architect-engineer services contracts below $30,000..." See DoD Class Deviation 2011-O0014 Past Performance Reporting, issued on June 27, 2011 at http://www.acq.osd.mil/dpap/policy/policyv...613-11-DPAP.pdf . This deviation is effective until incorporated in the DFARS or rescinded.

I agree that we can only speak in generalities. The funds I am referring to are from another Army command, not USACE. They might be DoD funds - I don't remember because some of the Chem-Demil sites fell under DoD funding stream while other sites were DA funded. And both commands had to use some type of funding for their participation in the program. I agree that the Comptroller or Finance and Accounting people should know what the questioner's funds may be used for.

I worked on the US Army Chemical Weapons Demilitarization Program for 10 years. Our construction included both RDT&E and MILCON. I think that the Corps of Engineers used O&M funding for supervision and administration of the RDTE portion of construction. You could contact the US Army Corps of Engineers at the Huntsville Engineering and Support Center and ask them or you could ask them for the current Program Manager's office point of contact at U.S. Army Element, Assembled Chemical Weapons Alternatives program (ACWA). The Program Manager may be using some other funds for their internal personnel or for efforts during the post construction period. Look up the USACE office or U.S. Army Element, Assembled Chemical Weapons Alternatives program (ACWA) via GOOGLE or look it up in Wikipedia.

Very interesting situation. Good discussion concerning how the liquidated damages were formulated and how the government's costs are considered. This is also a good study for NOT how to award or administer a design-build contract. I don't know how the job was acquired - sole source - competitively? The authorizing statute for Coast Guard design-build is, as far as I know, the Clinger-Cohen Act identified in FAR 36.104 and implemented in FAR 36.3 (the 2 Phase D-B method*). This requires competition, not a sole source procurement. A root cause of the problems appears to be agreeing to accept a non-conforming proposal that took precedent over conflicts with the solicitation requirements without amending the requirements to reflect what was actually agreed as the final requirements. It basically became a free for all. The contractor deviated from both the proposal and the solicitation and the government responded with "recommended" design review comments, rather than simply enforcing the requirements - whatever those were. Even when the government defended itself in the claim, it there isn't any indication that the government clearly identified exactly where the requirements are in the building codes and ASHRAE design references. The citations weren't included in the design review comments or in the KO's remarks cited in the Ruling. If this was a sole source negotiated procurement, then the government and contractor should have sorted out and clarified the scope and requirements before signing the contract. If it was competitively negotiated acquisition, the government should not have accepted a non-conforming proposal. Especially considering the subsequent confusion and the failure to agree on the scope (a situation that the Court has determined still exists), how could the government compare proposals based on different scopes? *The two-phase method in 41 U.S.C. 253m applies to Coast guard D-B authority, absent some other specific authority. Per 10 U.S.C. 2801 (d), 10 U.S.C. 2305a and 10 U.S.C. 2862 (one-step turn-key method) do not apply to USCG. EDITED: 7 January 2015: I recently discovered that 14 USC 677 and 48 CFR 3036.104-90 (May 6, 2008) provide the authority for the US Coast Guard to use the One-Step Turnkey Design-Build acquisition method. The three Suits discussed in the 19 August 2011 Decision were apparently acquired through a 2001 FSS contract for Prefabricated Structures and Outdoor Smoking Shelters. The three Coast Guard Orders were awarded back in the 2003-2004 time frame.The Court of Federal Claims decided the three suits separately. This one was for design and construction of a prefabricated structure to serve as a cutter support team building in Port Huron. I don't know how the GSA had statutory authority to award design-build FSS contracts or how the USCG had statutory authority to use them or to acquire design-build through sole source negotiations from an FSS contract.

I strongly agree with Vern. I should have warned you earlier, myself. It appears that this is new territory for you. You need to be certain that the contractor's delays are non-excusable. The delays must not due to government caused or government responsible causes. In other words, ensure first that the contractor is not otherwise entitled to a schedule extension for the delays. A few examples of excusable delays are unusually severe weather, changes, unreasonable government delays in responding to RFI's, differing site conditions or any other delays for which the contract would provide or allow a time extension. Also consider concurrent delays - delays by both parties which concurrently affect the schedule. Those delays which are concurrent might entitle a contractor to a time extension. Bottom line is that the contractor must generally have sole responsibility for the delays that you intend to direct it to overcome, unless you are prepared to pay for all or part of the additional costs associated with the effort. Nash and Cibinic cover the topic pretty well. I strongly urge you to obtain a copy, even if you have to buy it yourself.

Don, actually - Tijuana probably isn't a good example. The D-B Act doesn't apply in Mexico to my knowledge. However, a non-adjacent site that wasn't specifically set up for the project probably wouldn't be classified as a secondary site, for example. I think that the text can reasonably be deciphered. I wont clutter the thread with discussion concerning the background and reasons for the coverage. But the FAR Council should be notified and can easily correct the errors. Of course, I'm not on the panel that decides what is the most difficult sentence to understand in the FAR or in an agency FAR supplement. But this one doesn't seem to be that goofy in comparison with some of the others mentioned.

I agree with August. There is no need to modify the contract to issue an acceleration directive if the Government's position is that the delays are not excusable. The acceleration directive theoretically doesn't modify or change the contract. Since the schedule is the responsibility of the Contractor, there is no need to "direct an end the acceleration" once (if) the Contractor regains scheduled progress. The directive should be to take necessary steps to regain schedule with details, if necessary (per the authority of the clause). The Contractor must update the schedule as necessary, per the clause and/or specifications to demonstrate how it will and how it did regain scheduled progress.

Notwithstanding the two mistakes, can you tell what they meant by "secondary site of the work" for purposes of Davis-Bacon Act application and what is not considered to be a secondary site? It can make a big difference as to a contractor's labor costs and productivity.

Here is the FAR Clause verbatim: "52.236-14 -- Availability and Use of Utility Services (Apr 1984) (a) The Government shall make all reasonably required amounts of utilities available to the Contractor from existing outlets and supplies, as specified in the contract. Unless otherwise provided in the contract, the amount of each utility service consumed shall be charged to or paid for by the Contractor at prevailing rates charged to the Government or, where the utility is produced by the Government, at reasonable rates determined by the Contracting Officer. The Contractor shall carefully conserve any utilities furnished without charge. ( The Contractor, at its expense and in a workmanlike manner satisfactory to the Contracting Officer, shall install and maintain all necessary temporary connections and distribution lines, and all meters required to measure the amount of each utility used for the purpose of determining charges. Before final acceptance of the work by the Government, the Contractor shall remove all the temporary connections, distribution lines, meters, and associated paraphernalia. (End of Clause)" Thus, the clause, as written, states that the Contractor must pay for all utilities used. If this is the clause in your contract, you should not be reimbursing the Contractor for any utilities that the Installation has billed it for, provided that the rates are the same as those paid by the Government. I took a quick look at AR 420-1: "2?11. Government furnished, contractor occupied facilities A contractor host is required to coordinate with its servicing public works activity manager and to obtain approval from the garrison commander before facilities on a garrison are made available for contractor use. Before approval and contract award, square footage, type of space provided, and reimbursement for utilities will be defined in the contract." 2-17 Project Costs "...c. Appropriations that finance a project will be used to reimburse other appropriations for all funded costs initially financed by such other appropriations. Funded costs include? (1) Government-owned real property, materials, supplies, services, rental trailers and buildings, utilities, or items applicable to the project..."

I forgot to mention that you either have to modify your clause to charge the contractor or there may be a DFARS clause - again, I'm at a disadvantage here today (driving the bus to a volleyball tournament this weekend). The clause may well be editable. I just don't remember off the top of my head. You cited the authority to charge utilities. You just need to make sure that the contract reads consistent with the installation's requirements. Then you won't have to process a change each month. It will be included in the contract price. The other alternative is to have your project manager process a direct reimbursement to the installation from the project MCP appropriation. He/she won't like that extra budgeting and work plus it will not encourage contractors to conserve utilities.

Well, I'm still out of office today without access to computer. I think you can see why the Installation doesn't want to pay for utilities on a MILCON funded project with their O&M dollars. If this is Army, you could research AR 420-1 for the policy to charge MCA projects for utilities used. I think it is in there someplace. I had to research this issue back in 2006 or so for a Model RFP we developed for Army design-build projects.

Am unable to do the research this evening but I believe that the Army and perhaps the Air Force have been charging construction contractors on MILCON projects for utilities used during construction for several years. The installation pays for the utilities with O? funds. Complicating this, the utilities at many installations are privatized. There is an effort underway not to subsidize or augment the cost to construct MILCON funded projects with O&M funding. I think it is discussed in AR420-1 for Army projects but am not certain. And yes, the contractor will certainly try to put in enough in the contract price to cover itself. It would be cheaper just to charge the utility cost within the government accounts but that requires management effort and additional procedures by government employees, who generally feel that it easier to let a contractor manage it.

Am at volleyball match now, but is this for MILCON or O&M projects?

Some considerations: Is this a separately priced item? How has the contractor spread its overhead and other indirect costs across the contract pricing? Has it put all indirect costs on the other items to make this item appear to have "no cost"? From the competitors' perspective, what would the contract price be for this firm to comply with the TAA requirements? Thus, is the contract priced on the basis of non-conformance with the solicitation requirements? When you said "all other avenues have been explored" did you mean that no domestic/qualifying source is available for the item? I wasn't sure what that meant.

I thinkt that this is probably related to your Economy Act question yesterday in another thread. Your agency must have a finance and accounting office which should be able to tell you what type of funds you are providing the DoD agency for use on a construction ID/IQ. The F&A office should also be able to provide the certification that the funds may be used for the purpose you are seeking to use a task order - in the amount of the estimated cost of the task order. I believe that those are responsibilities of finance personnel.

So, are you saying that the clauses 52.215-22 and 23 do apply to this negotiated CPFF contract or order? If yes, then is the prime contractor providing any value to the subcontract, contract or order, per the definition of "excessive pass-through charge" in clause 52.215-23? "'Excessive pass-through charge', with respect to a Contractor or subcontractor that adds no or negligible value to a contract or subcontract, means a charge to the Government by the Contractor or subcontractor that is for indirect costs or profit/fee on work performed by a subcontractor (other than charges for the costs of managing subcontracts and any applicable indirect costs and associated profit/fee based on such costs). ?No or negligible value? means the Contractor or subcontractor cannot demonstrate to the Contracting Officer that its effort added value to the contract or subcontract in accomplishing the work performed under the contract (including task or delivery orders)."

Portion of what? Do you expect anyone to know what this is in reference to? If the subcontract cost is for an equitable adjustment on a contract that otherwise provides for profit, why would you think no prime profit is allowed? If pricing a contract for some work that is subcontracted and the contract would otherwise allow profit, why would you think that no prime profit on the subcontract is allowed? I assume that the prime contractor is responsible for the successful performance of the work that the subcontractor is performing, is that correct? The prime is at risk for performance and must expend cost and resources to administer the subcontract, so why would it not be entitled to profit, unless there is some special circumstance or contract arrangement?

I don't think it is correct to say that the gov't "won't pay for training" to stay current with software. If the firm includes such training in some type of overhead or other indirect cost, you will be paying for it. Then if you pay direct hours for certain specific training, those hours may include the training overhead markup too. So it is important to understand how the firms charge for training.

'Like Mr. Hoffman says, they are both contractor's entitlements, as opposed to "options". "Mr Hoffman" didn't that or anything else in this thread.

As stated above, there isn't enough information to answer the question and ferreirra doesn't appear to be interested in providing any more clarification. There is a lesson learned here for those who write contracts, those who evaluate or negotiate price or cost and to all contracting personnel. . If you are going to put specific requirements in the statement of work such as employee training or continuing education for proficiency, you need to identify how you intend to pay for it and/or determine how the contractor will charge you for it - before awarding the contract. Do not wonder how it can or should be charged to the contract after award. How can you even evaluate the proposed cost or price or compare proposals if it isn't clear to all parties? ferreirra's office should have spelled out ot determined how to pay for the training it apparently requires of contractor personnel.