joel hoffman

Vern, I don't totally agree with you. Our organization has huge periodic technical conferences. Many of these are joint service conferences. We couldn't afford to put these conferences on without sponsors (Industry Booths) helping defray the costs. In my opinion, they are very important conferences. They offer wide opportunities to provide required professional continuing education in order to meet professional licensing requirements. They offer opportunities to present or introduce state of the art scientific, architectural, engineering management, environmental, O&M, etc. studies, lessons learned, papers, etc. to a wide audience. Many of the exhibitors also provide professional presentations. The downside, in my opinion, is what Dwight Eisenhower warned us about at the end of his Presidency in 1961, to guard against the acquisition of unwarranted influence by the "Military-Industrial Complex". We tend to get too cozy with those firms that we do frequent business with.

I tend to agree with Vern, here. And a partial Convenience Termination would clean up the contract to avoid future claims. This would be especially important if the contract admin team changes over the course of the contract. However, it looks like another agency has the contract (Defense Fuels Agency, perhaps?). What is "WAWF"?

The advantage of being able to not exercise the option is "killing the turkey", so they won't keep coming around trying to drum up business. Then it's "Goodby, good luck elsewhere and good riddance."

Response: The program manager has overall responsibility for the acquisition plan but uses the responsible professionals to develop it and must coordinate with Contracting and Small Business advocates. From FAR 7.104(a): "...In developing the plan, the planner shall form a team consisting of all those who will be responsible for significant aspects of the acquisition, such as contracting, fiscal, legal, and technical personnel. If contract performance is to be in a designated operational area or supporting a diplomatic or consular mission, the planner shall also consider inclusion of the combatant commander or chief of mission, as appropriate. The planner should review previous plans for similar acquisitions and discuss them with the key personnel involved in those acquisitions. At key dates specified in the plan or whenever significant changes occur, and no less often than annually, the planner shall review the plan and, if appropriate, revise it." See FAR 7.104 ©: "© The planner shall coordinate with and secure the concurrence of the contracting officer in all acquisition planning. If the plan proposes using other than full and open competition when awarding a contract, the plan shall also be coordinated with the cognizant competition advocate. (d) (1) The planner shall coordinate the acquisition plan or strategy with the cognizant small business specialist when the strategy contemplates an acquisition meeting the dollar amounts in paragraph (d)(2) of this section unless the contract or order is entirely reserved or set-aside for small business under Part 19. The small business specialist shall notify the agency Office of Small and Disadvantaged Business Utilization if the strategy involves contract bundling that is unnecessary, unjustified, or not identified as bundled by the agency. If the strategy involves substantial bundling, the small business specialist shall assist in identifying alternative strategies that would reduce or minimize the scope of the bundling. (2) (i) The strategy shall be coordinated with the cognizant small business specialist in accordance with paragraph (d)(1) of this section if the estimated contract or order value is? (A) $7.5 million or more for the Department of Defense; ( $5.5 million or more for the National Aeronautics and Space Administration, the General Services Administration, and the Department of Energy; and © $2 million or more for all other agencies. (ii) If the strategy contemplates the award of multiple contracts or orders, the thresholds in paragraph (d)(2)(i) of this section apply to the cumulative maximum potential value, including options, of the contracts and orders." "

Vern, FAR 16.500 (d) applies to ID/IQ contracts in general. Yes, I said "see also 16.505(a)(8)", which applies to multiple agency ID/IQ's.

longhornjoe, the requirement is to pick the most highly qualified A-E firm for a task order (FAR 16.500(d)), consistent with Subpart 36.6 (see FAR 36.602), using qualifications based evaluation criteria consistent with 36.602-1 (see below). See also 16.505 (a) (8), also quoted below. Once the firm is selected, then we request their proposal, evaluate it and negotiate a fair and reasonable price, but the selection is qualifications based. FAR 36.602-1 -- Selection Criteria. "(a) Agencies shall evaluate each potential contractor in terms of its -- (1) Professional qualifications necessary for satisfactory performance of required services; (2) Specialized experience and technical competence in the type of work required, including, where appropriate, experience in energy conservation, pollution prevention, waste reduction, and the use of recovered materials; (3) Capacity to accomplish the work in the required time; (4) Past performance on contracts with Government agencies and private industry in terms of cost control, quality of work, and compliance with performance schedules; (5) Location in the general geographical area of the project and knowledge of the locality of the project; provided, that application of this criterion leaves an appropriate number of qualified firms, given the nature and size of the project; and (6) Acceptability under other appropriate evaluation criteria." FAR 16.505 (a) (8): "In accordance with section 1427( of Public Law 108-136, orders placed under multi-agency contracts for services that substantially or to a dominant extent specify performance of architect-engineer services, as defined in 2.101, shall? (i) Be awarded using the procedures at Subpart 36.6; and (ii) Require the direct supervision of a professional architect or engineer licensed, registered or certified in the State, Federal District, or outlying area, in which the services are to be performed." As soon as you ask for the detailed technical approach, including data which, when combined with contract unit prices, is used to evaluate the potential cost to the government, you are evaluating price or cost. The industry also knows or senses that cost or price is a competitive evaluation factor, using such tactics. I'm surprised that industry puts up with it.

Duh, yes I do think that. Why do you want the detailed information, including ODC and travel costs, plus the number of hours and manpower information? Its a rule of thumb that one doesn't ask for information in a competition that you won't evaluate.

You can't use price as a selection factor in competing task orders for A-E services.

JD, you may be thinking of requirements contracts, which are intended to be used for all purchase requirements for designated supplies or services, with exceptions, as Desperado pointed out. Thus, if the work is presently carried out under a requirements contract. you wouldn't normally split the work. "16.503 -- Requirements Contracts. (a) Description. A requirements contract provides for filling all actual purchase requirements of designated Government activities for supplies or services during a specified contract period, with deliveries or performance to be scheduled by placing orders with the contractor. (1) For the information of offerors and contractors, the contracting officer shall state a realistic estimated total quantity in the solicitation and resulting contract. This estimate is not a representation to an offeror or contractor that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable or normal. The contracting officer may obtain the estimate from records of previous requirements and consumption, or by other means, and should base the estimate on the most current information available. (2) The contract shall state, if feasible, the maximum limit of the contractor?s obligation to deliver and the Government?s obligation to order. The contract may also specify maximum or minimum quantities that the Government may order under each individual order and the maximum that it may order during a specified period of time. ( Application. (1) A requirements contract may be appropriate for acquiring any supplies or services when the Government anticipates recurring requirements but cannot predetermine the precise quantities of supplies or services that designated Government activities will need during a definite period. (2) No requirements contract in an amount estimated to exceed $100 million (including all options) may be awarded to a single source unless a determination is executed in accordance with 16.504©(1)(ii)(D). © Government property furnished for repair. When a requirements contract is used to acquire work (e.g., repair, modification, or overhaul) on existing items of Government property, the contracting officer shall specify in the Schedule that failure of the Government to furnish such items in the amounts or quantities described in the Schedule as ?estimated? or ?maximum? will not entitle the contractor to any equitable adjustment in price under the Government Property clause of the contract. (d) Limitations on use of requirements contracts for advisory and assistance services. (1) Except as provided in paragraph (d)(2) of this section, no solicitation for a requirements contract for advisory and assistance services in excess of three years and $11.5 million (including all options) may be issued unless the contracting officer or other official designated by the head of the agency determines in writing that the services required are so unique or highly specialized that it is not practicable to make multiple awards using the procedures in 16.504. (2) The limitation in paragraph (d)(1) of this section is not applicable to an acquisition of supplies or services that includes the acquisition of advisory and assistance services, if the contracting officer or other official designated by the head of the agency determines that the advisory and assistance services are necessarily incident to, and not a significant component of, the contract." Except for requirements contracts, one could compete the work between other in-scope ID/IQ contracts. Also, in the event that you have a new requirement that meets an "urgent and compelling" exception to full and open competition und FAR 6.302-2, one could compete it among availalble contractors on an installation. That is a more preferrable solution to me than sole sourcing urgent and complelling requirements under an exception in FAR 6.302-2. I have competed such new work between various contractors working on an installation, then added the work as an out of scope supplemental agreement on the winner's contract.

Buy the office at least one copy of the Nash and Cibinic (et al) series of textbooks on Government Contracting.

Matt, I was re-reading your post and it struck me as rather presumptuous of you to assert that only a "Contracting Officer" has the training or ability to approve construction or design-build submittals or to know whether or not you are approving a "variance", resulting in a mod to the contract. It is especially amusing that you state that you first obtain "Technical Gov't Rep." review before approving the submittal. You insinuated that a non KO will probably approve a variance, resulting in a constructive change. There are actually non-1102, highly trained personnel out there who can interpret contracts, using the general rules of contract interpretation and can determine whether or not a submittal meets the technical, administrative (e.g., Buy American act) contract requirements) and other contractual requirements, can approve conforming submittals, disapprove non-conforming submittials and can get the ACO or PCO to take appropriate action on variances. Our general rules are straightforward. The authorized COR can review and approve conforming submittals, disapprove non-conforming submittals and is instructed to send a variance that may be desirable to the ACO and/or KO for approval. The COR involves Office of Counsel, the PCO, Engineering and others when necessary, in making decisions and recommendations for the appropriate action to take on submittals. I don't remember everything that I wrote in the link that you provided and can't follow it on this particular Internet connection. It is the Contract Administration Plan for the Corps' Huntsville Engineering and Support Center's Chemical Demilitarization Directorate. The Chm-Demil Program is a Category I. DoD Major Defense Acquisition Program. The CA Plan was adapted under my supervision and involvement many years ago from the Mobile District Contract Administration Manual. I was the principle author and editor of that Manual back in the early 1990's. I rewrote and expanded the original Mobile CAB Manual , ehich had been updated a couple times by others since back to at least the 1973 time frame. It has been adapted by many other Corps Districts over the years. That Manual has since been updated by my successors. If your organization is limited to only the KO approving construction submittals, then I'd say that either your KO's don't have enough to do otherwise or conversely, I can see why they are overworked, doing stuff that others should be able to be trained to do. Sorry about being a grouch here. But it is ludicrous to assume that only an 1102 Contracting Officer is qualified to perform construction submittal reviews and actions. I, and other professional engineers (and registered architects) like me and before me, have been performing routine and non-routine contract admin functions for many more years than DAWIA has been in existence. I was writing, bidding, negotiating and administering construction contracts , mods , and claims long before I came to work for the Corps of Engineers and extensively since then and yes - others and I were and are fully qualified DAWIA Level III with enough business credits to qualify as COR's, Contracting Officers/ACO's and/or 1102's. P.S., our Directorate's Resident Engineers were warranted Contracting Officers, assigned as ACO's in addition to being COR's at the time the Contract Admin Plan iyou linked to was written.

I am a former ACO and Division Level Chief of Contract Administration for the Corps of Engineers. I'm TDY this week and can't locate the clause in our USACE contracts that also defines the term "Contracting Officer" (PCO, here) as an Authorized Rep of the Contracting Officer (COR) acting within their authority, which is essentially the same definition of Contracting Officer as in FAR 2.101. We provide notice to the Contractor, either in the contract or by letter, who the assigned COR is. We have an Administrative Contracting Officer (ACO) assigned to each contract with the authority to act as COR and to modify the contract under several clauses, within their authority level. This letter of assignment is also provided to the Contractor. A COR cannot approve a change to the contract in a submittal action. That is reserved for the ACO or PCO. For design-build contracts, we have adapted the Submittals Section 01 33 00 to cover design-build specific submittal procedures, which are vastly different than the construction contract submittal process. This includes proposed variances to the accepted design (we generally don't "approve" designs). We have developed a Special Contract requirement covering the process for a proposed variance (which we refer to as a "proposed deviation"). There are two classifications of variances/deviations from the accepted design: After technical approval of the Contractor's Designer of Record (DOR), the COR may concur with proposed deviations to the accepted design that do not change the contract, which consists of the Contractor's accepted design proposal and the RFP terms, including any amendments. Both the Contractor's DOR and the ACO/PCO must approve any proposed deviation that changes either the accepted proposal or the RFP.

Contractor is expected to bear the risk of cost for adverse weather as well as unusually adverse weather delays, so there seems to be nothing preventing a contractor from including these anticipated costs in its contract price. Therefore, in my opinion, it should be an allowable cost in the event of Termination for Convenience. If this were a request for equitable adjustment, our position (per the Defaults Clause) would be, "You are due time for an excusable delay but no additional cost for the additional delays due to unusually adverse weather". Another way of putting it could be "you have assumed the cost risk and we assume that you priced your contract accordingly."

Why don't you write one, if that is your intent? I'm not accessible to the FAR online through this Blackberry, but try checking out a FAR or DFARS clause "Insurance on a Government Installation".

You didn't explain very well but there are two ways to interpret the situation. 1) Contractor never went to work but was delayed for an extended period due to severe weather. The government terminated during this period. Or 2) Contractor went to work. After starting, Contractor experienced 'severe weather" delays and government jus happened to TFC during this period. Either way, you are wondering whether contractor is due any compensation for extra expenses incurred during time lost due to severe weather. My opinion is that, if contractor can show that it incurred costs during the period, it is entitled to some type of termination settlement. In order to reduce this settlement payment, the government must show that the contractor would have experienced a loss had its finished the project. Then you would adjust the settlement to prorate the settlement to account for the delay period. In that event, the contractor is entitled to his costs, less a loss adjustment. Otherwise, I would say that valid charges incurred during the delay would be part of the cost incurred during the delay.

One of the very good aspects of the Corps of Engineers' Financial Management System CEFMS software is a separation of functions. Folks other than the KO creating the obligation have to certify (I don't know the correct fiscal accounting term) that the funds are committed and available for obligation. The KO or other ordering officer, as applicable to the action, records the obligation in CEFMS at the time of signing the obligation instrument (generally a modification or contract). I remember the old days in our agency where we didn't have real time funds status and occasionally the funds had been pulled or some other problem was found.

In addition to Don's question, is there a way for you to provide a link to or a copy of the enclosure #8?

Don't be so quick, Sixth_WIFCON_Registration ("SWR") to overlook the applicability of the Davis-Bacon Act to other than real property. The DBA is applicable to public buildings or public works. Apparently, ships and vessels are considered public works. Unless, my DOL source below is OBE, The DBA seems to apply to certain types of ships or vessels. Apparently, there is a difference between "Naval vessels" (US Navy and Coast Guard ships) vessels and "marine vessels" for civilian agencies (including those vessels used for Civil Works by the US Army Army Corps of Engineers). The Federal Acquisition Streamlining Act repealed the coverage of the Walsh-Healy Public Contracts Act to contracts for the construction, alteration, furnishing, or equipping of naval vessels for the Navy and Coast Guard. This would have made construction alteration or repair of those vessels subject to the DBA. Congress reinstated the applicability of the PCA to Naval vessels in the Fiscal Year 1996 DOD Authorization Act. See the following USDOL discussion concerning Amendments to Federal Contract Labor Laws by the Federal Acquisition Streamlining Act of 1994 [9/5/1996] at: http://74.125.47.132/search?q=cache:RnMozF...lient=firefox-a These regulatory changes were effective on September 4, 1996 ?Section 3023 of FASA repealed 10 U.S.C. 7299 to eliminate the applicability of the PCA to contracts for the construction, alteration, furnishing, or equipping of naval vessels. While this amendment required no changes in the regulations, the Department (of Labor) advised contracting agencies and contractors that such contracts would, as a result, be subject to the Davis-Bacon Act, which applies to contracts in excess of $2,000 for the construction, alteration, and/or repair, including painting and decorating, of a public building or a public work, because marine vessels have historically been regarded as ``public works'' for purposes of the Davis-Bacon Act.? ?Marine vessels have historically been regarded as ``public works'' for purposes of the DBA.\3\ The DBA has accordingly been applied to contracts for the construction, alteration, or repair of Federally-owned or operated marine vessels (e.g., of the U.S. Army Corps of Engineers, National Oceanic and Atmospheric Administration, and Maritime Administration). Pursuant to 10 U.S.C. 7299, however, contracts in excess of $10,000 calling for construction, alteration, furnishing or equipping of naval vessels (U.S. Navy or U.S. Coast Guard) were heretofore subject to PCA. This statute had the effect of removing Navy and Coast Guard vessels from DBA coverage. The repeal of 10 U.S.C. 7299, however, caused the provisions of DBA to become applicable to Navy and Coast Guard vessels as with all other Federally-owned or operated marine vessels. Although this may have been an unintended consequence of the passage of FASA, the question of DBA coverage is clear. Thus, contracts involving U.S. Navy or U.S. Coast Guard vessels, as for all other U.S. Government marine vessels historically, would also be subject to DBA by statutory language in the absence of 10 U.S.C. 7299. In any case, however, this issue has become moot by the enactment of section 815 of the Fiscal Year 1996 DOD Authorization Act (Pub. L. 104-106; February 10, 1996), which includes a provision reinstating former 10 U.S.C. 7299. As a result, each contract for the construction, alteration, furnishing or equipping of a naval vessel is once again subject to the PCA, unless the President determines that this requirement is not in the interest of national defense.?

By administrative convenience, I am assuming that you want to add the new scope to the existing contract as an out-of-scope modification, rather than create a new, separate contract, correct? As far as I know, assuming that you adequately justify the exception to full and open competition, you should be able to do that. I'm assuming that you simply want to piggy-back on the contract's current terms and conditions. I'm not sure what administrative type problems there might be with DoD's standard Procurement System. Perhaps someone can advise...

Alexreb, you will probably have to consult with counsel. There weren't many cases to fall back on when we were trying to define general VEQ policies. In my experience, there are many scenarios and reasons for price increases. I think that the spirit and intent was to hold the bargain for the contracted scope of work (original scope), except where an increase in actual quantities over the estimate caused either an increase or a decrease in the unit cost to perform the work. in the hypothetical case, the contractor apparently lost its supplier because it didn't hold its end of the bargain with the supplier. You aren't really clear about when the supplier changed and at what point in placement did the price increase actually affect the unit cost to complete the contracted scope of work. You said the contractor discovered the estimated quantities were "in error" at the time of placement of about 110% of estimated quantity. Estimates are estimates, not set in stone and variations are often encountered. Now, if there was a gross error in the estimating methodology or if a differing site condition exists, there have been cases when the courts or boards held that the changes clause or some other clause should apply to the work beyond the range within the clause. The VEQ clause says that there is no adjustment for overruns or underruns within the range of 85-115% of the estimated quantity. Any adjustment would apply to quantities outside the range, if the contractor's unit cost increased or decreased due solely to the overrun or underrun (absent a change in the work or scope or absent a grossly negligent estimate). Well, technically, the unit cost apparently didn't change due to the overrun nor did it appear to change from the unit cost at the point that the contractor lost its original supplier, although you haven't clearly described when that was. That's why I asked when the higher material prices affected the unit cost. There are all sorts of things to consider here...

' Thank you, Ron. Here is a link to an article in the American Institute of Steel Construction's "Modern Steel Construction " magazine that provides an overview of the Buy America Act as it relates to FHWA funding of Bridge construction projects executed by the States. http://www.prosperousamerica.org/index2.ph...4&Itemid=58 It doesn't answer my question to self, how Chinese steel or Chinese fabricated steel is allowed on the gigantic CALTRANS (sorry- it's not "CALDOT") Bridge replacement project on the I-80 San Fransisco-Oakland Bay Bridge. I'll dig some more. From a T.Y. Lin International technical article at http://www.pwri.go.jp/eng/ujnr/tc/g/pdf/23/23-9-2ho.pdf: "Construction The San Francisco-Oakland Bay Bridge East Span replacement is truly an international project. Elements of the bridge are supplied by vendors from all over the world: • China – Main steel tower, steel orthotropic box girder, main cables • Japan – Cable saddle, cable wrapping • Korea – Shear key casting, suspender cables • United Kingdom – High strength prestressing anchor rods, cable bands • Canada – Structural detailing, some aggregates • United States – Piles, pile caps, transition structure (steel box girder) and pipe beams. The cranes, barges, temporary towers and many other construction related equipment also come from fabricators around the world." Fluor Construction with partner American Bridge Company is the contractor for the Bridge on the $1.43 billion project. I found another article where it said that CALTRANS restructured the contracts to allow foreign steel after the original bid using US steel came in 23% over the foreign steel bid.

Regarding the San Fransisco-Oakland Bay Bridge replacement project, this is probabaly a CALDOT awarded contract, using FHWA Federal transportation funding with State contribution share. I suppose I should look up the rules on whether or not the BAA applies to these types of State awarded contracts. Certainly, Communist China does qualify under the various Trade Ageeement Acts...

Alexreb, I have some experience in the area of VEQ and helped write the USACE policy guidance on pricing adjustments back in the early 90's. As you may know, we don't simply reprice the units beyond 115% of the estimated quantity based upon the actual unit cost (known as the "Bean Dredging Decision" method). For overruns, we look at differences in unit cost to perform.the work within the range of the first 115% of estimated quantity and those units exceeding 115% of estimated quantity (otherwise known as the "Victory Construction" method, reaffirmed in "Foley Construction", circa 1993 or so. I am on Blackberry today without access to my notes and cases). At first glance it would appear that the contractor would be entitled to a price adjustment based upon the increase in supplier cost for the work outside the range. However, you didn't say at what point it lost its lower cost supplier. Was it during performance of work bwtween 100 and 115 % of the estimated quantity or during performance of quantities exceeding 115% of the estimated quantity? Do you know at what point the material price changed?

I read an article last night in ENR (see the online version at http://enr.ecnext.com/coms2/article_intr090729BayBridgeSte) about how severe quality flaws in Chinese steel bridge assemblies, fabricated in Shanghai, for the San Fransisco-Oakland Bay Bridge replacement of the East Span from Yerba Buena Island to Oakland are delaying the project. There are problems with cracked welds among other things. This is on a bridge replacement project caused by the last major SF Bay Area Earthquake. I don't understand how Chinese steel or steel fabricated in China is allowed on this project...

Oh, if Sam Walton had stayed alive for a few more years. Does anyone remember the ads about how everything Walmart sold was "made in the U.S.A.?" That would have been sometime back in the early 80's. I often wonder that if perhaps, Walmart would have somehow been able to retain that Sam Walton Corporate philosophy, would things still be made here. I doubt it, but Walmart became the nation's largest retailer and has had a tremendous impact on what is made where.