joel hoffman

The Association of General Contractors represents a huge share of the construction market. And in my opinion, the DoD construction contractor format, using the Construction Specifications Institute’s MasterFormat is already a standard format in use in the marketplace. The construction industry requires more time than a couple of weeks to just develop a bidding team, seek qualified, competitive subcontractors and suppliers, determine the scope of work, estimate quantities of materials and work, develop a construction approach, obtain bids, etc. Generally a site visit is necessary to see and also identify the conditions , locations, ask questions etc. The industry already complains about having only 30 days to prepare and submit price proposals for non-design-build, construction projects . For Design-build competitions, one must add some time for the firms and their teaming partners to develop enough preliminary design to estimate and price a proposal. We recommend 45 days in lieu of 30 days for D-B competitions. In my experience, there is often room for improvements in initial pricing in a RFP due to many factors. I have often been able to shave millions of dollars off initial proposed pricing that were due to uncertainties in conditions, ambiguous specs that drove up prices from subs, suppliers that see designs around certain specific equipment, etc. On one large Air Force Project, we found alternate sources for high volume compression Turbines that dropped the price of that major equipment by $3 million from the initial proposed price. In another instance, lack of identification of elevation to rock and to water tables on a very long, elevated, high volume, high velocity heated/chilled air line resulted in over $2 million in contingencies by foundation subcontractors for uncertainties and possibility of encountering rock excavation and de-watering.. We added unit-priced line items for rock excavation and de-watering. The proposers dropped prices by $2 million In the end, we had a $1 million dollar underrun in those unit priced line items, resulting in over saving $3 million dollars below the initial proposed prices. Those are but examples of dollar savings and/or improvements/corrections in the solicitations thst end up saving dollars and after award conflicts/delays/corrective action, etc. Cutting corners to “expedite the process for the acquisition of construction services up to $7.5 million” doesn't serve the best interests of either the industry or the taxpayers. (Note my examples cited reflect mid 1990’s pricing and lessons-learned. Current dollar levels for the same problems would be much higher.)

There aren’t standard catalog prices for most construction projects. Don’t consider the “Means Estimating Guide” as “catalog pricing”. It can provide unit priced estimates but each item must be estimated by applicable quantity and the underlying basis for an estimate depends upon applicable labor rates, available equipment and several other variable conditions.

For a complete construction project, I’m not sure what you are trying to accomplish with a Part 12 commercial service contract format. I can see how a Part 12 Contract could be useful for simple efforts like that I mentioned earlier - installing, replacing or repairing individual items of real property installed equipment, small painting projects, etc. But for a construction project , the DoD doesnt use the Uniform Contract Format for construction contracts. It uses the Construction Specifications Institute’s CSI MasterFormat, which is a standard construction industry contract format. The Unified Facility Guide Specifications UFGS are written in the CSI Format. They incorporate standard industry commercial materials, equipment and installation procedures plus mandatory federal design criteria. The contract clauses also allocate risk and assign standard roles and responsibilities between the contract parties. The contract format and roles and responsibilities are not unlike commercial construction contracting for similar type projects. The standard basic construction contract clauses aren’t that many and generally resemble many non-federal construction contracts. I would agree that there are a large number of social engineering and bureaucratic clauses that Congress has interjected. What corners are you trying to cut ?

I agree with @GeoJeff assessment, too. Of course, the Part 12 payment procedures (no progress payments, no payment for stored materials, etc. prior to completion and acceptance don’t work for construction contractors. The requirements for bilateral agreement to make changes would likely cause massive disruption and schedule impacts as well as chaos in pricing changes and time extensions and in determining entitlement to compensation for delays and impacts.

This bolded language, by itself would disqualify most construction projects of any complexity, as a full blown construction projects aren’t priced based upon established catalog prices or market prices. Even when Sears Roebuck sold houses out of its catalogs over 100 years ago, I believe that it was only for the plans and materials, not including the construction of the kits. I agree with Vern’s assessment. Construction contractor’s generally don’t write the contract language or design and prepare the plans and specifications for complete construction projects in commercial practice. Note that the AIA and other standard model specs like NSPE, ASCE, are prepared for specific contracts by licensed architects and engineers, who are the designers of record. The DOR’s , have both statutory and regulatory responsibilities for not only the functionality and performance but also for durability and life safety aspects of projects. . I can see using Part 12 for: Also for repairs or replacement of individual building components like an A/C unit or other components in a building for instance. But one would be a complete fool to use Part 12 for a full construction project.

It appears that the original poster@Gareth Hyndman last checked-in to the WIFCON website on 26th of August, although one can view the thread without a log -in to the Site. It is now the afternoon of the 3rd of September.

Okay-so what are you actually referring to and trying to do? It appears that you are trying to add new or revised clause(s) to an awarded contract for “commercial items” “(d) Application of FAR changes to solicitations and contracts. Unless otherwise specified- (1) FAR changes apply to solicitations issued on or after the effective date of the change; (2) Contracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and (3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.” I don’t think the KO can unilaterally force such FAR changes (may depend upon what the FAR change is) on the contract.

I worked for DoD (US Army Corps of Engineers) for many years. I have experience with what I consider frivolous protests. During a period in the 1990’s before the Brooks IT Act was thankfully repealed, the GSBCA had jurisdiction over all protests for contracts that contained Federal Information Processors (FIP). GSBCA held that construction contracts which included even one desktop computer that controlled fire alarms, sprinkler systems, HVAC and other building systems were considered to be FIP. The systems had digital controls or sensors reporting to the IBM or similar desktop. The Army was upgrading controls for such building systems in existing facilities or including the Electronic Monitoring and Controls Systems (EMCS) or Utility Monitoring and Control Systems (UMCS) in new construction. There were three firms with separate proprietary control systems competing for every new or upgraded EMCS installation. We awarded a best value contract for upgrade EMCS to a hospital that had a partial Johnson Controls System. Within 3 hours, of the award announcement, one unsuccessful proposer submitted a canned, fully detailed bid protest. There was no way that any of the three competing firms had any details of the basis of award or other information concerning the evaluations or trade-off that would have been included in a subsequent de-briefing. There was no basis immediately upon award to make specific claims of improper proposal evaluations or favortism I learned soon after the protest notification that every similar type procurement in other USACE Districts for several years had also been protested. This project award was delayed for almost a year, due to the initial and subsequent protests by the firm to GSBCA and then to an Appeals Court. We finally prevailed in Court, when our USACE Headquarters successfully convinced the court that standard digital building systems controls were not “FIP” resources but incidental to and part of the standard building systems, thus not subject to GSBCA protest jurisdiction. The Court also overruled the unreasonable GSBCA holding in our case that every intangible strength in a best value trade-off had to be monetarily quantified in order to justify awarding to a firm with a higher rated/higher priced proposal. Congress soon repealed the Brooks IT Act and GSBCA jurisdiction over DOD procurement protests. Totally frustrating and frivolous protest and dealings with GSBCA, who were way out of their lane.

EDIT: I noticed that the original poster last “visited” the site at the time he/she posted their question, over five days ago. Hopefully, they are satisfied with the answers provided. Good luck.

@HWD Hello. Although various scenarios have been discussed by respondents, could you please provide some context to the stated problem? Your original post simply asked for options but really didn't provide any context/details. My original post assumed that the problem became evident after exercising the option. I’m assuming that this a contract/task order for dental services, including but not limited to dental cleaning services. Is that correct? The need for additional context seems evident. For instance, is this now prior to exercising the option or is it afterward, during performance? When was the government first aware of the problem? Is providing a dental hygienist a separately identified line or sublime item? E.g., If so could it be too underpriced to attract or retain a current hygienist(s)? Has the contractor explained why it is having this problem? Etc. Without any context/details, one can only speculate. .You asked for available “options” . But, as stated by others here, available options depend upon the specifics of the scenario. Dental hygienist and cleaning .services are obviously an integral part of dental care. Thank you.

The type/sense of pride that I’m referring to is “authentic pride”, which can be described as as: “Rooted in Achievement: Authentic pride is a direct result of achieving goals, mastering skills, or successfully completing tasks through one's own efforts. Positive Impact: It promotes feelings of self-worth, confidence, and motivation, encouraging further effort and achievement. Characteristics: Individuals experiencing authentic pride are often described as friendly, responsible, and forward-looking. Connection to Self-Esteem: Authentic pride is associated with high self-esteem and a healthy sense of one's abilities. Example: Feeling proud of successfully learning a new language or completing a challenging project.” As opposed to “hubristic pride”, which can be described as: “Rooted in Arrogance: Hubristic pride is characterized by arrogance, a sense of superiority, and a tendency to belittle others. Negative Impact: It can lead to hostility, defensiveness, and a lack of motivation for self-improvement. Characteristics: Individuals experiencing hubristic pride may be described as pompous, conceited, and arrogant. Connection to Narcissism: Hubristic pride is often linked to narcissism and a need for external validation.” Also -“Extreme love and focus on oneself” And “An inflated sense of self importance and a tendency to look down upon others” Example: “Feeling superior to others based on perceived achievements without putting in the necessary effort.” See, for instance: a Google search for “Authentic pride meaning” and compare against “sinful Biblical Pride”, “Hubristic Pride”.

I have a hard time believing that a contractor providing dental services can’t hire a qualified dental hygienist. It if it can’t meet a contract requirement to provide a dental hygienist then technically, it could be in default, couldn’t it?

I would add that pride in one’s work and a desire to excel, add value and improve the overall performance of one’s organization can be personal motivators.

Vern, as consumers, are sales contracts for goods or services, new home sales, etc. written by the providers/sellers in a partnership approach? Are insurance policies written in a partnership approach? Hello no! They are written for the benefit of the seller, insurer, loan provider, service provider, etc. The federal government isn’t unique in its approach. For that matter, state, local governments, and other public entities are not really different, except they don’t have nearly as many social requirements. Just sayin’…

@KOiFish , One way to think of it is to understand that the government hires contractors to do stuff, to perform services, and/or furnish stuff, and/or build, maintain, and repair stuff. So, it writes contracts to describe what it wants contractors to do before or after obtaining the contract. Each different type of contract effort has applicable provisions and clauses. Many of them are social requirements, added by Congress or by Presidential directives.

What contract contains every FAR provision and clause?

Back in the early 1990’s there was a DOD test program for competitive “SDB set-asides”. However, it WASNT integrated with the SBA regulations, for the various Part 19 programs, resulting in some ambiguity.and gaps. For instance, DoD didnt issue any qualification requirements for SDB led joint ventures.. It was a short-lived program. —-——————————————- Personal experience with the DoD SDB set-aside test program: I remember that we had an agency protest on one of several SDB set-aside, LPTA source selections. The contract was for a new airfield parking apron at one of our Air Force customer’s Air Bases in Florida, I led the source selection for our Chief of Contracting, who was the PCO . Our Agency (Corps of Engineers) denied the protest. However, unfortunately, there weren’t clear, separate DoD level authorities for some of the non-selection reasons that the SBA regulations would have covered. These dealt with joint venture requirements. We would have likely also prevailed on those grounds in a GAO protest under the various Part 19 SDB programs. I had discovered several, obvious “front” type teaming arrangements that were pretty obvious. The Agency didnt rule on those reasons due to ambiguity or gaps in which SBA provisions applied to DOD set-asides. Fortunately, the Agency rejected the protests on some technicalities concerning the joint venture agreement (I think) and upheld our LPTA award to the second lowest, acceptable offer from a qualified proposer. The unsuccessful, lowest priced offeror didnt appeal the agency protest denial. The awardee was a Hispanic owned SDB firm led, JV. The SDB firm WASNT in the 8(a) or any other specific SDB Part -19 set-aside, programs.. It turned out to be a successful project with the legit SDB, partnered with a small business paving contractor. The SDB firm legitimately managed the project with its own supervisory employees and self-performed actual work activities, exceeding the minimum required percentage of self-performed direct work, using its own employees. Soon afterwards, the DoD SDB set-aside Program was cancelled, due, in part, to lack of clear DoD coverage of contractor qualifications that were otherwise covered by SBA regulations. At least that is my recollection of the test program for competitive, general SDB set-asides. I apologize for visual difficulties this morning, which may result in spelling or other errors in my typing this post.

What more guidance than what you quoted to answer your question?

Let me modify that to say: “So anyone handling micro-purchases at a higher increased threshold either needs to be an adequately trained 1102 with business sense or adequately trained in a 1105 type series.”

I did check the Procurement List list and didn’t see all the type of services that I think elevenOali was referring to. But I did couch it as my opinion based upon some of my experience at and around USACE camp, picnic, and swimming areas, navigational aids, etc. in remote areas along banks of reservoirs, lakes and rivers, etc. There are distinctions between routine custodial and grounds work and finding and removal of massive amounts of scattered litter and maintenance of campsites. But I suppose that it would depend upon the specific nature of the work. Of course, the USACE District would have to check the Procurement List. I don’t know anything about OASIS+ contracts.

I personally don’t see a fit for Ability One program for mowing/groundskeeping/site cleanup services at the type of USACE areas described, if the Lake Sidney Lanier or Tenn-Tom Waterway recreation areas are typical examples.

Why not just consider the previous thread that you referenced above? It discussed what to do “when you determine” that the price has or will exceed the SAP . I was addressing the two alternative answers to the poll, which appear to be essentially the same.

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Other than when an overrun of estimated quantities (where permitted under the contract) occurs, what is the substantive difference between “a price upon performance completion” and “the last-occurring upon establishing the award or modification price”. Both [bracketed] scenarios appear to address a post award scenario… Deciding to award an option and/or make other modifications that affect the final performance price would both seem to be considerations after award…

This is essentially a limited design build in that the prime construction contractor or its subcontractor through the prime is providing the design and installation of a building fire extinguishing system. This is common practice. Construction contracts contain clauses covering responsibilities and liabilities for contractor furnished designs under the contract. For example, the Warranty of Construction clause includes warranty for designs furnished under the contract. DOD and other organizations have standard construction contract clauses regarding government rights to designs furnished under the contract (either unlimited rights or shared rights). The Spearin Doctrine is a legal principle that applies under Case Law to responsibility for errors and omissions as well as functionality/performance in designs provided, whether by the government or the contractor .