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joel hoffman

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  1. It appears that you really just want to know whether or not you need to prepare for performance and that if you aren't the winner or close (in case the winner declines the award), you can concentrate on other opportunities. Could you approach the KO from that perspective? You don't need to know who the winner is, you just need to know if you can forget about wasting effort and cost on prepping for possible performance. I've been involved in such situations from the gov't side. it is within the realm of possibility that the KO might let you know from that perspective.
  2. Is this a unit priced item for payment or is it some type of lump sum item? It would appear from the scenario presented that you would have been paid the same amount had you experienced an underrun within 15% of the "contract quantity", without an adjustment. If that is so, it appears to me that, as long as the actual quantities are within the range of 85-115%, there is no change. The change, as described by the KO, would compare the cost within the range to the cost outside the range. But I don't have the entire context of the contract terms to read. If the item is unit-priced as you hinted, that doesn't make a lot of sense, either. That's why I'm asking you how the bid item is set up for payment.
  3. If you feel that a firm can perform the same work for 1/2 the price, why not negotiate with the prime to not use the higher proced firm(s)? You are in the pre-award phase. Who they use would seem to be negotiable. So...negotiate.
  4. I don't see a problem with what you agreed to. It was good to obtain agreement, plan for the estimated end date of the delay and to forward price the delay.
  5. Shot answer: Additional funding for in-scope modifications must use original year appropriation until they are exhausted. Such funds remain available for modifications until exhausted or until they are past the timeframe that they are available for for payment. See the Redbook for details.
  6. Dkubis I just provided you the reference to the Notice of final Rule in the Federal Register that implemented FAR 36.3. This is the only authority a non-DOD agency has to perform design-build construction contracts. What else do you need? What evidence can this contracting officer provide to show that the design activities in a design-build contract are covered by the A-E contract Prompt Pay and Payment clauses? Last year, we awarded $12 billion in Army construction contracts alone. The greatest share of those contracts and task orders were Design-Build. All of those were awarded as construction contracts.
  7. dkubis, Design-Build is an integrated delivery method for construction. I'm really curious why your organization would want to or would think it necessary to single out the design cost for a longer period to pay the Contractor for performance. Can you explain the rationale involved? The design-build method can offer certain advantages/benefits related to things such as construcaibility, single-source responsibility, total project delivery time, design/construct to meet performance requirements within budget. Performance-based design criteria offer the owner and contractor the ability to agree on a design and price proposal within the requirements to meet the challenges of changing labor, subcontractor, and materials availability and pricing. In order to take advantage of these possibilities, the design and construction team must work together throughout the D-B process, beginning with the proposal stage and extending through commissioning, turnover and the closeout documentation. The Design and construction processes overlap and are put on a fast-track schedule. The designer should be involved during construction and the constructor is involved during design. The costs for each role player should be distributed across many of the contract activities. The design industry has been reluctantly dragged into the D-B approach. The American Institute of Architects as an organization really would prefer that D-B just go away. Actually, up until the early part of the last Century, D-B was the primary delivery method used for building construction in the US. The design industry doesn't have deep enough pockets to bear substantial technical proposal development costs, on a competitive (risky) basis . That is one reason that the AIA is not enthusiastic about D-B. Another reason is familiarity with their role in an A-E services contract. Those type contracts are comfortable - they know that the chance of design liability being an issue is low due to the high bar to establishing A-E liability. They like working directly for the owner with often close working relationships. A D-B contract is absolutely not a contract for A-E Services. The designer works for the prime contractor. The designer can't get rated for past performance as an A-E contractor in that system. The standard of care for design is generally higher in our D-B contracts. The designer may bear more risk for design liability, possibly more for errors and omissions and usually gets less credit for the end product. Experienced design firms have discovered that a good design-builder/designer relationship actually may reduce the chance for liability due to the collaberative design process. The D-B prime may request retainage from monthly progress payments to the design subcontractor(s) in addition to other retainage by the Government. So, I don't see any reason to single the design activities of the contract out for extended payment terms If anything, quicker cash flow is critical and an important advantage to the designer. In our Model RFP for Army design-build, we actually offer an interim monthly progress payment as a bonus for maintaining scheduled progress.
  8. dkubis, a design-build contract is a construction contract. It is not a contract for A-E Services, which is covered under FAR Subpart 36.6 and under separate US Code (see, for example, 40 US Code Chapter 11, Sections 1101-1104). Therefore, you'd use the construction contract clauses "Payment Under Fixed-Price Construction Contracts" (52.232-5) and "Prompt Payment for Construction Contracts" (52.232-27) . Nothing authorizes or directs you to include the corresponding A-E contract clauses (52.232-10 and 52.232-26, respectively) because this isn't a contract for A-E services. You asked " When you award a DB contract what designates it as a Construction Contract besides what form you choose to use?" The US Code for the current version of the One-Step Turnkey selection procedures that originally authorized Design-Build Construction for the Military Construction (MILCON) Program is found at 10 USC 2862. That Statute specifically says that such contracts are construction contracts. "TITLE 10 > Subtitle A > PART IV > CHAPTER 169 > SUBCHAPTER III > ? 286 2862 Turn-key selection procedures (a) Authority to Use.? The Secretary concerned may use one-step turn-key selection procedures for the purpose of entering into contracts for the construction of authorized military construction projects. ( Definition.? In this section, the term ?one-step turn-key selection procedures? means procedures used for the selection of a contractor on the basis of price and other evaluation criteria to perform, in accordance with the provisions of a firm fixed-price contract, both the design and construction of a facility using performance specifications supplied by the Secretary concerned." The Notice of Final Rule in the Federal Register that implemented the 2 Phase Design-Build process into the Federal Acquisition Regulations is found at Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)], Pages 271-273. [www.gpo.gov] [FR Doc No: 96-33217]. It says in applicable part: "SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have agreed on a final rule to amend the Federal Acquisition Regulation (FAR) to implement Section 4105 of the Clinger-Cohen Act of 1996 (Public Law 104-106), which authorizes the use of two-phase design-build procedures for construction contracting." A now deceased friend of mine, Laura Meeker, was an attorney in HQ US Army Corps of Engineers Office of Counsel. Laura was the chairperson for the DAR Council Committee for Part 36 at one time. She was involved in both the drafting of the Legislation and the FAR 36.3 coverage of the 2 Phase D-B method. She sent me a copy of a report which summarized the public comments for the FAR Case 96-305. I cant find it in my home office. To the best of my recollection, one public comment was that the FAR ought to include contract clauses specifically applicable to the unique roles and responsibilities of design-build contracts. The Council's or Committee's response was to the effect that no additional coverage is necessary, as design-build is a construction contract. Well, they were way off the mark there concerning the need for additional clauses. But my point is that I think they specifically identified D-B as a construction contract. If I find it, I will let you know what it said. I think it is filed away on my computer somewhere. At any rate, we know that design-build contracts under the One-Step Turnkey authorization and the 2 Phase D-B method were identified as construction contracts. The 2 Phase Legislation does refer to D-B as "a contract for the design and construction of a public building, facility, or work", as does the wording in FAR 36.3. You asked "What stops you from awarding to the AE firm for a DB project? " Did you mean "What stops you from awarding to an AE firm for a DB project? " Nothing legally prevents award of a D-B contract to an A-E firm. We have awarded D-B contracts to such firms as Parsons and Black and Veatch, who demonstrated adequate performance capability to assure us that they had a high probability to successfully complete the contracts. You asked "Does that mean the entire contract falls under Brooks?" No. Hiring an A-E firm doesnt convert a construction contract into a contract for A-E services. Finally, you asked "Does that mean the whole project is paid on 30-day pays?" No, see above. The "Prompt Payment for Construction Contracts" Clause applies to progress payments. The payment period for progress payments is generally 14 days, not 30.
  9. Are you asking where it is documented that a design-build contract is either a construction contract that includes design or design-build is some other type of contract plus a construction contract? The reason I ask is that I'm not at my office to look for the souirces to document that D-B is a construction contract and won't be there till late this afternoon. I am curious though. Since this is a serious discussion, what documentation or other reason do those have who would say that you treat this as a combination of construction and some other contract type? Do they say it is also an A-E services contract and that A-E contract clauses apply to the design portion? Where do they get that interpretation? Do they think D-B is performed in distinct and separate phases that can be isolated?
  10. Changing the contract terms when asking for a final proposal revision isnt just limited to the "good old days". It is still a done these days when productive discussions reveal the need or advantage to do so. With the simplicity of email, one could attach the amended RFP requirements, if any, in email messages to each firm that is still in the competitive range, when requesting the final proposal revisions. If an office wants to be more formal and make additional work, they can also compose and attach the request for the FPR in letter form to the email. That is a clerical perogative that is up to their organization to decide. If it isn't obvious though, don't include multiple competing firms' email addresses in any email correspondence. Send individual emails to each firm. Of more concern to me here is, from ipod 24's posts that he/she seemed to not understand the discussion PROCESS and seemed not to know that you dont just allow a proposal revision after conducting individual discussions with firms, then select a winner from those revisions. Yes, the KO may allow or request proposal revisions to clarify and document understandings reached during negotiations. Rather than simply quoting FAR and declaring that an answer, several folks pointed out that it is also necessary to formally close discussions, allow each firm still in the competitve range the opportunity to submit a final proposal revision. You must establish a COMMON cutoff date for receipt of final, written proposal revisions. Irrespective of the method used to request FPR, ipod24 should now know a basic difference between amendments before and after receipt of proposals is who they go to.
  11. Actually, prior to the availability and widespread use of e-mail, issuing the request for Best and Final Offers via Amendment by faxed SF 30, was very simple - much simpler than typing separate letters to each firm. The SF 30 provided a formal, written, consistent means to document the common cut-off date, time, and place for final proposal submission. The form contained all the information necessary for a request for BAFO. Even I could type one or fill one out electronically. Then it was a simple matter to walk over to Contracting and get the KO to sign it. No custom typed letter was necessary. In the age of FAX, you'd use the same piece of paper with only a separate FAX cover sheet, filled out bu hand. In addition,we also included the final, amended terms and conditions of the solicitation (just the amended items, not the whole RFP). It was often necessary to amend the solicitation after conclusion of discussions . Discussions in construction and design-build RFP's commonly resulted in finding ways to improve the RFP and/or to lower costs. Thus, the amendment served both purposes and formalized the request with the KO's signature, so that the proposers knew that it wasn't just Joe Blow requesting the final offer. Of course, Facsimiles are now considered Stone Age communications. Now days, unless there is a need to amend the actual RFP terms and conditions, I'd agree that a separate email to each firm requesting their final proposal revisions is pretty simple and extremely fast. However, it would still be necessary to attach an SF 30, when the RFP is amended. So, do you include the information twice - in the email and in the attached SF 30? As for an oral request for final proposal revisions, I'd personally steer away from the practice, unless I followed up in writing. The final cut-off date for final proposal revisions is still a formal requirement. A written communication provides the clear record of what was said and what was requested. And regarding Contracting Officers' productive use of time, they shouldn't be performing unnecessary clerical work anyway. Let someone else do that and get the KO to sign-off on it. If I was a proposer on a multi-million dollar RFP that had cost me upwards of a hundred thousand dollars to propose on, I'd like to know that a person in charge of the solicitation had seen and signed off on the final request for proposals. An email from a staffer doesn't bolster my confidence but an email with a signed SF 30 would seem to provide some assurance that the KO had some kind of supervisory control over or at least had reviewed the process. But if the KO has to personally compose and send emails, that seems to be a waste of their time and my tax money. I think it is a matter of perspective. SF 30's served the purpose well back in the day before emails, were simpler than typing letters, involved minimal clerical time of the otherwise busy KO's and were needed anyway, when the request included amended terms and conditions.
  12. It may not be the proper or best technique, but I saw it being done for years.
  13. You don't issue an amendment after receipt of proposals "which will be posted in FEDBIZOpps notifying the other contractors that discussions have ended." You send amendments only to those firms still in the competition. FAR 15.206 -- Amending the Solicitation. "(a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation. ( Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation. © Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition." Then, upon completion of discussions, you establish a common cut-off date and time for those still in the competitive range and ask for their final written proposal revisions (FAR 15.307 (). You could do this in an amendment or by correspondence. It is hard to tell how you closed discussions and if you selected the winner before the KO told you to issue an amendment asking for final proposal revisions.
  14. Did your KO actually say that you "have to inform the public that discussions have been included"? You indicated later that your office argues "that not doing so would lead to a potential protest from a contractor who was not notified that discussion had ended." How does that involve "notifying the public"? Are you sure that they aren't talking about issuing the notice via an amendment to only those still in the competitive range?
  15. Why not read the settlement agreement? If it contains essentially the same language, I suggest consulting with your attorney (who probably assisted in the Termination Settlement) and have the TCO determine if that is adequate. If, so document the file and pay the Contractor off.
  16. I couldn't connect to either of these links on either my Blackberry or my computer. Are the links good? "Not Found The requested URL /hi/hubzone22.pdf"]http://www.pubklaw.com/hi/hubzone22.pdf[/url was not found on this server. Apache/2.2.3 (CentOS) Server at www.pubklaw.com Port 80"
  17. Did the settlement agreement include release of claims language or something essentially equivalent?
  18. I really liked Vern's original idea until Don said that some tasks overlap other contracts. It would seem that the Navy could compete those tasks between the various contracts to get the best price. Oops, I didn't mean to submit this post. I had decided not to and thought I was "going back", not "submitting", because I don't know what flexibility the agency has in selecting the source or location for ship repairs. I didn't know why only one firm would be selected to do the work or if others were in the local vicinity. Obviously, a ship has to be berthed somewhere so that it can be examined to better define the scope of services required. Vern's next post below is very informative.
  19. I am also not going to get into the wisdom of doing it or the possible alternatives to doing it. I have seen it done on a large scale.
  20. Thanks for the information, Charles. I see your points.
  21. Charles, there was a contract awarded. It has been dated to cover the period in which the contractor continued to perform at risk. Why do you say "You do not have a contract"? Thanks.
  22. Thanks for the courtesy, Vern (NOT). "Well, in our legal system", many "contracts" have been ruled null and void, due to various reasons. One that comes to mind is lack of legal capacity for one or more of the signatories. In my business law class of some 37 years ago , some examples were people who had been judged as mentally incompetent to manage their affairs and minors below the age of 18. Such "contracts" were usually not legally binding. According to the class, a minor could sign a contract to buy a motorcycle or bike, ride it then bring it back for a full refund. I remember the prof saying that if the minor broke or wrecked the bike, the merchant would still have to refund the sales price. Here, a contract was signed and back dated to cover a period where the firm who is now the contractor was performing before the contract was executed During that period, the government issued a "cure notice" for unsatisfactory performance. Contracts have been ruled to be null and void for various reasons such as lack of authority. That is why I said it may or may not be legal, if challenged. As of the day that IMO last posted and information provided, I would have to assume that the contract is still in place. I don't know if it is legal to backdate a contract. The KO knew that the contractor was performing without a contract in place, according to the information provided. It appears to me (and I don't really care whether you agree) that the government intended to pay the contractor for the services rendered between the end of the first contract and execution of the follow-on contract, since the new contract period covers that performance. From the information provided, that would seem to me to be the reason that the KO back dated the contract. That isn't rocket science. Why would the contractor accept the date of the contract without being paid something for its performance? As for the Cure Notice, the government had no contractual authority to issue it at the time. I doubt that back dating a contract to cover the time that a Cure Notice was issued would make the action "legal". But, I'm not a lawyer. Now, I still would like Charles to please explain why he said that there is no contract. I think that he is an attorney and I'm interested in his opinion. Please allow him to respond. Thanks.
  23. Vern, I realize that you seem to be compelled to have the last word. However, I didn't ask you anything. I asked Charles a question and would appreciate it if you would let him answer me without adding snide.remarks. Thanks.
  24. Okay - Charles, there was a contract awarded. It has been dated to cover the period in which the contractor continued to perform at risk. It may or may not be legal. Why did you say that "You do not have a contract"? Vern, I agree with your statement:"It's stupid to issue a cure notice after a contract has expired. Issuing one against a contract that has not been awarded is incredibly stupid. Any CO who does something like that should be stripped of their warrant."
  25. Yep. However, "apparently" the contractor was still performing and most likely getting paid at the time of the thread, which was sometime after the contract was backdated.
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