joel hoffman

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.

In addition, why don't you ask the customer to identify what each appropriation is for and why?

This contract or these contracts are "acquisitions from Hell" for all parties concerned. I felt like I was in Purgatory, trying to read it. Confusing terminology; long, tortuous paths taken to award base contracts and task orders; frought with litigation every step of the way!

I will certainly agree that management and contracting incompetence and inefficiency also occurs in the "private sector", if you consider major DOE and defense contractors, who's management and acquisition systems appear to me to be products of the government contracting system to be the private sector. If you think it is bad in government agencies, these people can make gov't bureaucrats look like models of efficiency! Many of these firms'business management side are well staffed with ex-military ("efficiency, what's that?") and ex-civil service programs and contracting types. It's particularly frustrating to deal with the ones whose primary business lines are predominantly cost reimbursement type contracts. My experience with several of these firms over the past 15 years has been that they won't generally break a rule to get the job done BUT often won't find a way to overcome challenges within the rules, either. We've often had to negotiate paths forward or lead them by the hand to find ways to overcome significant management or contracting problems. It's challenging for some of them to successfully perform firm, fixed-price contracts. They can't seem to or won't grasp the contractual differences in risk allocation. But it also occurs on their cost contracts. So - it aint just the government side who is subject to these type problems.

I happen to agree with Vern Edwards' 16 December comments to the article: " by Vern Edwards (not verified) | December 16, 2009 Breaking the rules There were countless legal ways for Jane to have accomplished her mission. Her action was a reflection of her ignorance. She should lose her authority to use a government credit card and be given a letter of reprimand, so should her boss. It is one thing to "break all the rules" of the business world, when "rules" means standard practices. It is another thing entirely to break government laws and regulations. The Federal Acquisition Regulation expressly prohibits splitting orders in the way that Jane did. See 48 C.F.R. ? 13.003?(1)(2). A rule in the Code of Federal Regulations is not the same as a business "rule." This article was described at a popular website about government contracting. The authors are irresponsible and should publish a retraction." Where there is a will (and some knowledge of the available avenues to get the job done), there is a way. Anarchy would soon set in if everyone decided to "break the rules" whenever they don't know any other way to get the job done. What guidelines would determine when to and who can break the rules? Anytime one thinks that the job wont get done if "the rules are followed"? You cant tell me that having an administrative assistant use her government credit card and split the requirement into 2 transactions is the only way to be able to make a $4,000 training conference purchase! What basis did an administrative assistant have to determine that there was no other way to accomplish the requirement than her using her government credit card to make the purchase(s)? The author offers nothing to support his hypothesis that the mission couldn't be fulfilled any other way! What a poor example to make his point. P.S. I can Verify that Vern Edward wrote the above quoted comment!!

Great answer, Vern. You must be a very good mood today, because 1102 never really did clarify what she was asking.

Mdtpham, the work appears to be construction work to remove and replace (paint?) Non-skid surface in a Navy dry-dock. I'm not sure but think a drydock is a public work - however someone needs to verify that. Even if it is somehow classified as a service, I doubt that it is a "commercial service" that would be sold on a catalog pricing basis. The DOL considers painting work to be construction, not a service. See DFARS 22.401. Even though the products might be regular commercial products, it isn't a supply contract if the "work" is to remove and replace the non-skid, not just to supply the materials to the Navy for someone else to remove and install. Construction work is not usually considered to be a commercial item, especially if the specs are unique Military Specs. But I'm basing my opinion on the scant description you provided plus an assumption that a dry dock is a public work for labor classifications. Someone familiar with Navy work should probably comment. Let me ask you though - why would you consider this to be a commerical item as a service or supplies?

Well, I just read a protest over ammunition skids for the Navy, which were acquired as a commercial item but had to conform to "specified government drawings, Department of Defense (DoD) standards, and industry specifications and standards listed in the SOW... In this regard, the SOW identified the primary drawing (No. 3967AS100, major assembly), along with 11 revised drawings and four DoD standards." See protest of Deval Corporation at http://www.wifcon.com/cgen/402182.pdf I'm very skeptical that ammunication loading skids are commercial items, sold to the general public, if they are designed to DoD standards and design drawings. Who would purchase loading skids for aircraft weapons other than the Military? I looked up skids on the Internet and they are pretty specialized Military equipment. One of the primary intentions of acquisition reform was to get away from MILSPECS, MILSTANDARDS, etc., and acquire stuff that is available in the marketplace. I think that was the intent of designating commercial item acquisitions. But, due to the more simplified nature of commercial item acquisitions (i.e., allows shortcuts and allows uneducated buyers to put out commercial item acquisitions), it is being abused, in my opinion. Having read the decision, the agency did some strange things - like buying ammunition loading equipment designed to DoD specs and drawings as commercial items; also, stating that the respondents to the RFQ must show that they are qualified to weld the skid assemblies - but then saying that lack of experience would not be held against them! Looks like they mixed up the ideas of experience and past performance in their evaluation criteria. But I stray from your question. I've read a couple of protests lately that were commercial item or service acquisitions but just don't seem to fit the intent of commercial item acquisitions, as originally intended for the acquisition reform movement. But, hey - the DoD tried to buy C-130-J and C-17 aircraft as commercial items! I guess there are folks out there who will try to buy anything that way in order to simplify their job or for some other reason. My answer would be that it probably depends upon whether or not the "work" is something that is sold to the public. For example, do the MILSPECS or "military specs" make the "work" unique for the Military? What is the "work"?

We used award fees on some large, very complex construction contracts back in the 1980's in my organization. This was before there was any FAR coverage for FFP with AF. Of course, our award fee criteria was based upon performance beyond the contract minimum requirements in the areas of safety, quality management, schedule management and general ability to overcome adversity and other problems in order to achieve a safe, high quality project, finished on time.

Having known a few of the executives in major construction companies and in some large defense firms, I'd say, as Vern implied, that the courtesy cover letter or an executive summary might be useful in major procurements.

Don, this has been covered above in that 16.202-1 exempts a fixed price contract with an award fee from including a cost constraint, as stated in your opening post under this thread. FP Incentive and CP Incentive contracts are quite different than fixed price contracts that contain an award fee as a type of incentive for higher performance than just meeting the minimum requirements. I believe that the FPAF language is Johnny Come Lately, added later, but poorly integrated with FAR 16.4. This language in FAR 16.402-1(a) was in the January 1996 FAR: "Most incentive contracts include only cost incentives, which take the form of a profit or fee adjustment formula and are intended to motivate the contractor to effectively manage costs. No incentive contract may provide for other incentives without also providing a cost incentive (or constraint)." This language was not in FAR 16.202-1 at that time: "The contracting officer may use a firm-fixed-price contract in conjunction with an award-fee incentive (see 16.404) and performance or delivery incentives (see 16.402-2 and 16.402-3) when the award fee or incentive is based solely on factors other than cost. The contract type remains firm-fixed-price when used with these incentives." The FPAF language added to 16.202-1 apparently wasn't coordinated with the existing incentive contracts language above. The footnotes indicate that it was added by FAC 2001-13, effective 4/17/2003. I checked the FAC and it didn't describe the background for the added language.

Good God, Almighty! What exactly is it that you cannot understand about the information that I referenced/cited for you in your similar thread the past few days? When the courts and GAO say that it a fundamental principle in federal acquisitions that the proposal must conform to all material aspects of the solicitation in order to award, that means that you can't award a contract based upon a deficient proposal which doesn't comply with all material solicitation requirements.