joel hoffman

Sorry, duplicate post. My home computer is experiencing technical problems in viewing the Forum. I was unable to view my last post.

No problem, Vern. I said that you responded to the unfair advantage aspect of OCI, while I concentrated on the aspect of preventing the existence of conflicting roles that might bias a contractor's judgement. You don't agree with my opinion and I don't agree with yours.

We're friends, Joel, but you tend to give hasty answers, sometimes dashing something off from your Blackberry while waiting in an airport. September asked a straightforward question that was not hard to answer. You went off like a rocket with a lot of blather. Slow down and think about what you say and why you say it. We want to give good answers, helpful answers, don't we? Vern, the reason you finally provided in your post yesterday (several days after the original question was asked), referred to FAR 9.505-2((1). It might appear that application of such reasoning could prohibit an A/E firm from performing A/E services for the owner after award of the resulting construction contract, if those services were described in the contract documents that the A/E prepared. That doesn't make any sense at all in the real world of government A/E contracting. The A/E firm is the designer of record for the government and must often perform various technical reviews, inspections, etc. The Commissioning Agent is to act as the owner's representative during the commissioning of the building by the contractor. As for me providing "hasty answers", I disagree. September specifically asked for feedback on the following points: "Does the writer of the Commissioning requirements in a Buildings Construction Specs have an organizational conflict of interest that would impair their ability to serve effectively as the Commissioning Agent?" "Others believe that the writer of the Commissioning specs will have a bias to believe the commissioning specs are perfect, and that will impact their ability of implement the most effective commissioning plan." September asked on January 11 for feedback about organizational conflict of interest with respect to the above described professional and ethical considerations. I responded that I assumed that September was talking about a firm that prepared the specs, then would be hired to work for the contractor after award. I said that there will be a conflict of interest. Later, I added: "Also, the commissioning agent could possibly become involved in conflicts of interest with the design itself, regardless of whom they are working for." As for being "not hard to answer", on the morning of Jan 12 you offered only your statement that "The organizational conflict of interest is rather obvious." What kind of "good, helpful answer" was that intended to be? Later that morning, September clarified that the firm prepared the specs for an organization, that her/his organization was going to issue the construction contract and was going to separately direct contract with a Commissioning Agent. She/he said that she/he didn't think that that would change the conflict of interest, but offered them up in case there were other comments "we" would want to provide. That afternoon I offered to check with my subject matter experts - those in the government who prepare designs, who execute contracts and commission buildings and work regularly with A/E firms. I didn't notice any professorial admonition from you between then and 23 1/2 hours later when I offered a basis to determine what an organization that we belong to and adopt their standards considers to be a reasonable basis for allowing the design firm to participate as the Commissioning Agent. The scope of those services is for whole building commissioning, which is even more complex and critical than simply commissioning an HVAC system. Because we regularly engage our A/E firms to provide some services after award of the construction contracts that they design and that they describe in the contract documents, that seemed to be a very professional and reasonable basis to respond to Septembers' concern. This concern was expressed as: Would being the writer of the commissioning spec..."impair their ability to serve effectively as the Commissioning Agent?" And: "Others believe that the writer of the Commissioning specs will have a bias to believe the commissioning specs are perfect, and that will impact their ability of implement the most effective commissioning plan." FAR 9.505 General Rules describes two underlying principles "( a) Preventing the existence of conflicting roles that might bias a contractor's judgement; and ( Preventing unfair competitive advantage. In addition to the other situations described in this subpart, an unfair competitive advantage exists where a contractor competing for award of any federal contract possesses- ( 1) proprietary information(that was obtained from a government official without proper authorization; or ( 2) source selection information (as described in (2.101) that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract. From my experience with specifications for commissioning of building systems - yes, these are "Buildings Construction Specs", Commissioning specs aren't custom written for construction projects. There are guide specs and there are standard industry guidelines for commissioning of HVAC systems or whole building commissioning. This isn't rocket science and it most likely isn't anything out of the ordinary. I later apologized for not addressing the issue of unfair advantage. Quite frankly I don't see any "unfair" or "competitive" advantage for an A/E firm who wrote the commissioning requirements in an A/E competition for Commissioning Agent services - unless the specs are custom written so that they would be in a position of unfair advantage. There wasn't any mention of this and I haven't seen custom commissioning specs on typical building projects. The fact that September used the term "Commissioning Agent" indicates to me that this is a standard procedure. I admitted that a service contract competition might be different, where price is a factor, due to some familiarity with the design. My concern was with the aspect of OCI that September specifically asked about: "Preventing the existence of conflicting roles that might bias a contractor's judgement." That is what I researched and answered. If you think that taking a day to request expert assistance, read that advice, check out the advice, then respond is "hasty", I suppose it is in comparison to the three days that you waited to provide your FAR reference. Your analysis appears to be based upon determining who or what the USGBC is, then seemingly dismissing any relevance to what is considered by many organizations to be one industry standard for determining what is considered to be a conflicting role that might bias a contractor's judgement. All Army building construction is required to be at least LEED certifiable these days and the Air Force and NAVFAC have also adopted LEED. Finally, you provided an answer on the basis of unfair advantage per FAR 9-505-2 ( . I don't know how you determined that the firm couldn't participate because it allegedly was in a position to favor its own capabilities. How is that so? How do you know that none of the exceptions in 9.505-2 ( (1) apply? As for the relevance of our respective answers, I concentrated on responding to specific OCI questions concerning professional judgement and bias. I believe that my response was reasonable and researched. I didn't pay much attention to the separate consideration of unfair advantage because 1) September didn't ask about that and 2) I don't think that a firm would have a competitive advantage in competing for an A/E contract to be the CA, assuming that the CA specs are not custom written to favor that firm's capabilities. There are many firms who provide CA services. You concentrated on concerns about unfair competitive advantage, basing your answer upon 9.505-2 (.

Duplicate post.

Yes, you are most likely correct if this will be a service contract. However, if September's organization decided to acquire a small A-E contract for CA services, it might be different. The A-E firm might well have performed the service during construction as part of its original contract, had the contract been with September rather than a different organization. The OCI rules cited above would stop virtually all such A-E services during construction, if they were literally applied to A-E contracts the same as to a service contract. We often retain the original design firm for services during construction to review shop drawings, perform inspections, perform special inspections, perform shop inspections, and probably to perform commissioning services, too. I've seen the A-E involved in commissioning of complex projects. Well, the A-E writes all these requirements into the contract specifications as part of the design effort. it could be a real problem if the firm wrote the specs around its own unique or rare capabilities. But if it used standard specs for services that many firms can provide, I don't see any inherent competitive advantage. If this were to be a small A-E contract, experience, general capabilities, personnel quals/resources and past performance would be the discriminators for selection if the the A-E used standard commissioning specs (we have guide specs for Commissioning whether LEED or just for HVAC) and if the government can determine whether the specs are open or would prejudice the competition. Price is negotiated on A-E contracts after the initial selection, so that isn't necessarily a competitive selection factor. My perspective is from the A-E/construction side and knowing that our A-E's often provide some services during construction for which they wrote the specs. In fact, I served in that role myself before joining Civil Service. We always knew that we were serving the interests of the client, whether it was government or other owner. That's part of our licensing code of ethics. But, I suppose one might be expected to apply the OCI rules literally for any separately awarded A-E contract for services during construction.

Naw, as I explained above,it wasn't me. I try to keep up as time permits and send feedback when I disagree.

PS, In the event that this post is aimed at anyone in particular, I haven't been the "Professor" for Construction and A/E Contracts for over 2 1/2 years. Despite my repeated requests, AAP wouldn't remove my organization from the "Who Answers These Questions?" page until they finally deleted (I think) the page. I occasionally provide feedback to AAP when I strongly disagree with an answer. The only way to do that is to submit a "question", referring to the question number that appears in the URL line of the specific page. I think I have aggravated them to the extent that they ignore me. By the way, if you want to be the "professor" for a topic, you can constantly bug them about their answers until they ask you if you'd like to be the "prof". That's what happened to me. I got tired of the Navy person's answers to the questions back in 2001.

The role of the CA is to be an independent agent of the owner in the Commissioning process whether for HVAC or for Whole Building Commissioning. For LEED projects, the USGBC wants an honest submission of the performance documentation supporting certification from the Whole Building Commissioning process, which incorporates HVAC commissioning . They feel that the entity who designed the project for the owner can be trusted to serve as the CA under the conditions delineated in the LEED policy and we accept that. This is a service that could be included in the original A/E contract as services during construction. For simpler commissioning only of HVAC, which is a subset of Whole Building Commissioning, the same standards should be able to be applied to the question if the same firm who wrote the specs can effectively and honestly serve as the commissioning agent. The question of insider advantage is separate.

I apolgize for answering September's question, which focused on standards of professional conflict of interest, rather than "organizational" conflict of interest. Based upon professional standards of conflict, one could determine whether or not it would be permissible to use a firm involved in design as the owner's Commissioning Agent. It would be permissible to include CA services as what used to be referred to as "Title II" services (services during during construction) in an AE contract under appropriate circumstances. I feel that the LEED guidelines are reasonable standards to determine professional independence. Here, the real problem, which I overlooked and nobody else specifically addressed either, is that the design was performed under a contract by the other owner entity, so we can't just use the design firm under the same contract for services during construction. Therefore, we are competing the services under a separate contract and the question is - does the firm have an "organizational" conflict of interest? The question of ethical and professional conflict can be resolved using PROFESSIONAL standards and the LEED standards make sense. However, the next question is - does the firm have an unfair advantage over other firms in the competition for the owner contract? From a practical standpoint, firms other than the original firm should be able to perform the service. One must decide if they think that this firm has an unfair advantage under FAR 9.5 guidelines. By the way, Vern, DOD is a member of the US Green Building Council and I imagine that GSA might also be a member. Now please tell me what you think the organizational conflict of interest really is here. I don't think there is a professional conflict of interest in the firm being able to ethically serve as CA. There may be a question of unfair competitive advantage. Aside from your questioning the motives of USGBC, what do you think?

September indicated that a firm, which prepared the commissioning specifications for the project, wants to compete for the government contract to serve as the government's Commissioning Agent. September wants to know if that would be considered acceptable or would it be considered a conflict of interest. The information I provided is the standard of the USGBC for participation both as the Commissioning Agent and in the design of the project. The standards are for Whole Building commissioning under LEED, which includes HVAC commissioning. I don't know whether the project at hand includes Whole Building Commissioning or just HVAC but the standards appear to be a reasonable standard to apply to determine what USGBC considers to be acceptable for avoidance of conflict of interest in the Commissioning process. DOD has adopted LEED for new CONUS construction. DOD is the agency currently acquiring the most Federal building construction and may be the individual organization contracting for the most building construction in the US economy right now,

Here is what my mechanical engineer has advised, based upon Whole Building Commissioning criteria for LEED ("Leadership in Energy and Environmental Design") compliance by the US Green Building Council. Whole Building Commissioning goes beyond simply commissioning the HVAC system and is the way of the future. Note that the Corps of Engineers doesn't allow the CA to be an employee of the prime or sub, nor of the contractor's designer if the project is design-build instead of government designed. "(A) source for the answer to this Commisioning Agent question is LEED-NC v2.2 (see excerpts below). Fundamental Commissioning (which is required for every project) and Enhanced Commissioning (Optional) both state that the CxA may be (can be) a qualified employee "or consultant of the Owner". However, based on the other qualifications of the CxA, the USGBC may have to be convinced that the consultant to the Owner is truly an Independent Commissioning Authority. Fundamental Commissioning states that the individual serving as the CxA may include a qualified employee of the design firm and for projects smaller than 50,000 gross square feet the CxA may be a person on the design team. For projects 50,000 gross square feet and larger the CxA may be an employee of the design firm but shall be independent of the project's design team. For projects attempting to get the Enhanced Commissioning Credit the CxA shall be independent of the work of design and not be an employee of the design firm with no deviation for project size." Therefore in keeping with the intent of the USGBC for the CxA to be independent it appears that it is acceptable for the firm who prepared the (government prepared) design to be the CxA for Fundamental Commissioning but not for projects attempting to get the Optional Enhanced Commissioning Credit."

it appears that she needs to quit being diplomatic, meet privately with the PO and lay down her rules. Either coordinate with the prime or she will remove his/her right to visit the site as the technical COR.

Whoa - the PO gets his/her contractual TCOR authority from the KO. The KO can direct the PO to coordinate with the prime. Why is the KO "suggesting" rather than directing?

Can the scope of the updating of programs, if needed, be included in the new contract as a performance requirement? Then, the additional cost, if any, should be reflected in the competitors' prices.

Vern, I agree with you if checking on the status of govt property and perhaps how to use it is the actual purpose of the PO's visit.I somehow missed the purpose of the visits and keyed in on the contract language indicating the role of the PO.

While waiting, here is the latest wording from the Model RFP that we are using on design-build contracts on Army Military Construction and Base Realignment and Closure projects. I realize that it is technical in nature. However, it spells out the contractual roles in an attempt to avoid conflicts of interest: "...(Hire) the Commissioning Authority (CA), certified as a CA by AABC, NEBB, or TABB, as described in ASHRAE Guideline 1.1. The CA will be an independent contractor and not an employee or subcontractor of the Contractor or any other subcontractor on this project, including the design professionals (i.e., the Designer of Record or their firm(s)). The Contracting Officer?s Representative will act as the Owner?s representative in performance of duties spelled out under OWNER in Annex F of ASHRAE Guideline 0."

The project officer is apparently an authorized representative of the contracting officer. His/her technical direction role is to "fill in details, suggest(s) possible lines of inquiry, or otherwise complete(s) the general scope of work set forth herein". If I were the prime, I'd request that the KO insist that the PO coordinate his/her visits with the prime contractor. The prime contractor, has a contractual resposibility to correctly perform the contract work and to enforce its subcontract with the subcontractor. It appears that the PO may be leaving the prime contractor out of the information loop. That is unprofessional and the PO should be providing technical direction through or at least in the presence of the entity that is responsibile for the quality and performance of the work. The prime would also have the opportunity to determine if it feels that the government intentionally or inadvertantly changed the work. The prime has the responsibility to notify the government of any direction that it considers to be a change. It may not have that opportunity if it doesn't witness the technical direction. Lots of facts are lost through translation from a sub to the prime to the government. If this is a cost contract, the technical direction may well influence costs...

How much will it vary from the original prices as competed (order of magnitude)?

I will check with my subject matter experts and get back to you. They are gone for the day...

Carl, I don't know who the term "projects officer" refers to. On USACE contracts, we don't want other than authorized contract administration personnel, (KO's, ACO's, "contracts personnel", QA folks, etc.), leading any inspections of sites, prime or subcontractor facilities and we make that clear to government personnel involved in projects. Others are welcome to visit our sites and contractors but we will arrange for authorized/designated escorts to interact with contractor or subcontractor personnel. Construction sites and manufacturing facilities present safety hazards which must be managed. Unauthorized individuals shouldn't just wander in to work sites.

Great example, Loul.

To add a further thought on this, I am a registered professional engineer who used to be a consulting engineer. The licensing and regulatory codes for the states I am registered under prohibit a conflict of interest where I performed services for the owner, then turn around and work for the contractor. Also, the commissioning agent could possibly become involved in conflicts of interest with the design itself, regardless of whom they are working for.

What type of contract is this (service, supply, construction, etc.) and what type of pricing arrangement (firm fixed- price, cost reimbursement, etc.)? Edited at 10:50 PM: If you check out your Inspection clause (one of the 52.246-XX clauses), depending upon the type of contract, they will generally allow the government the right to inspect any of the work at any time, including the work of subs. For cost reimbursement contracts there are Work Oversight clauses that allow the government to oversee the work. There are also Inspection requirements in construction contracts and some of the others that require the contractor to inspect its work and that of the subs. I would definitely request that the government coordinate its inspection visits of the subcontractor with the prime, as a courtesy to the prime, using the "no privity of contract with the subs" excuse plus there may be a possibility that the government agent might provide direction to the subcontractor outside the authority of the agent or that the contractor might be left out of the loop. If your contract has "partnering" or other similar procedures in it, this would be an appropriate topic to raise with the government. Legally, the government may make surprise inspections. This may be likely if the government feels that the prime may "tip off" the sub to cover up or hide problems.

Response edited on Monday evening (11:07 or so): Okay, I assume that you are talking about a construction contract and that the contractor must provide a commissioning agent. I also assume that the firm that you are inquiring about has provided A/E services in preparing the contract specs for commissioning. In that case, yes, there will be a professional conflict of interest. The firm who prepares the design should not be involved in the subsequent construction contract as a prime or a sub to the prime. This might be covered in state licensing laws and regulations. See also FAR 36.209 -- Construction Contracts With Architect-Engineer Firms. "No contract for the construction of a project shall be awarded to the firm that designed the project or its subsidiaries or affiliates, except with the approval of the head of the agency or authorized representative." It's late tonight, but I'm thinking that there are statutes covering this - there are also FAR provisions covering business ethics and conflicts of interest. If I get an opportunity tomorrow, I will do some further research. We (Corps of Engineers) generally write our construction and design-build contracts to require an commissioning agent independent from the contractor, installing firm or designer. There may be a clause in the A/E's contract that states this and/or a provision, clause or technical spec in the construction contract. I will do some more research. I haven't found an actual FAR clause which states that the A/E or its subs or affiliates cant be a subcontractor. Perhaps we have been using tech specs to prevent conflicts of interest. The Corps awards more building construction contracts than any other federal government agency that I am aware of. If you are writing construction contracts, I would recommend requiring a commissioning agent that is independent of the designer, constructor, test and balance firm or installer.