joel hoffman

Just saw a notice of this new topic this morning in my Denali. In response, based upon the limited information in the original post: If the contract completion date has been extended due to delays to the critical path to completion due to a DSC, it would appear that some form of extended field office overhead would be allowable.

I still have new 19 email notification messages to look at but there are no unread posts or comments that should be indicated in bold on the Forum Home Page. Just read another email notification of a new topic post which is strictly an advertisement.

What is going on with the forum today? Suddenly a flood of emails came out with what appears to be new topics or even old topics that were never posted. in addition, I’m getting notices of new or recent comments to topics. However, they aren’t marked as “unread” responses when I go to the Forum Home Page.to look for unread threads or comments. Looks like Bob purposely did not post at least one of the topics - it was an advertisement or promotion for certain products. Totally inappropriate topic. Some of the topics are Overcome by Events. Old dates with then current questions on what to do. No use bothering now to research answers. Most were initially asked in the Sept- December timeframe when Bob was seriously ill or had passed away. However, they aren’t marked as unread in the topic listing even though I’ve never seen them before.

The question is too vague to answer. How did DFAS overpay and on wrong CLIN? Was it an error by the contracting agency? Have the payments exceeded the funds obligated on the contract? Further details are necessary if not exceeding the contract amount or funds obligated, this should be reconciled on the next invoice for ongoing work.

Yes, on a deductive or increase change (per the changes clause) , to be consistent, the equitable adjustment includes net change in costs, including G&A and profit allowance -

Aside from the question concerning issuing a CPARS rating on a cancelled purchase order, the contractor must have an opportunity to respond to a negative draft CPARS rating. Someone a level above the the KO who prepared the evaluation must review disagreements between the parties over the evaluation. A contractors rebuttal also becomes part of the file. 42.1503 Procedures. “d) Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. The contractor will receive a CPARS-system generated notification when an evaluation is ready for comment. Contractors shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency. Copies of the evaluation, contractor response, and review comments, if any, shall be retained as part of the evaluation. These evaluations may be used to support future award decisions, and should therefore be marked “Source Selection Information”. Evaluation of Federal Prison Industries (FPI) performance may be used to support a waiver request (see 8.604) when FPI is a mandatory source in accordance with subpart 8.6. The completed evaluation shall not be released to other than Government personnel and the contractor whose performance is being evaluated during the period the information may be used to provide source selection information. Disclosure of such information could cause harm both to the commercial interest of the Government and to the competitive position of the contractor being evaluated as well as impede the efficiency of Government operations. Evaluations used in determining award or incentive fee payments may also be used to satisfy the requirements of this subpart. A copy of the annual or final past performance evaluation shall be provided to the contractor as soon as it is finalized.” I personally don’t think it is appropriate to prepare a performance evaluation for a purchase order cancelled pursuant to FAR 13.302-4(b) . After cancellation no further action is required per that reference.

Without any more information and context to the situation, we can only speculate…

Yes, I agree with formerfed on this. Please provide the context to the situation. If the Government has arranged for a conference location, hotels often provide free or discounted meeting space and services based upon expected occupancy for attendance. The parties may have arranged for a block of rooms for attendees. Since the government is paying for the attendees travel, it would seem entirely reasonable to expect the attendees to stay at the location in such circumstances. Sorry if you won’t get points or other membership Bennie’s from another hotel chain.

I just received a email notification of this new topic today. Was the contractor required to request a modification to extend the FSS contract ? If so, why? Or is this an extension to an order under an FSS contract?

Carl, that is the discussion I referenced and provided the link to earlier.

Ok, I checked my 3rd and 4th Editions of Administration of Government Contracts. There is a complete section on post acceptance rights and responsibilities of the parties including warranties, burden of proof, issues with improper calls, preservation of contract rights of the parties for remedies, case law citations, etc. Assuming from the facts that you presented so far, I don’t really know why you need more basis than what I told you to show that, after final acceptance of the work, 1.The government has the burden of proof to show that the contractor’s work or materials were faulty, causing the leak or that there was fraud or gross mistake involved. (Specifically discussed in detail in the referenced book.) 2. The government apparently, simply assumed that the leak was associated with the contractor’s work. 3. The government called the contractor back under the authority of the warranty clause/warranty. 4. The contractor determined that the leak was not caused by or associated with the contractor’s work or otherwise damaged by the contractor. 5. Thus, the prior acceptance of the work was still final and conclusive. 6. Therefore, the contractor had no liability under the warranty. 7. There were some costs incurred to make a site visit and to inspect the cause of the leak. 8. The contractor isn’t liable for those costs. 9. During the warranty period the contract terms and rights of the parties are preserved for remedies. 10. The contractor can submit a request for equitable adjustment. All of the above points are covered in the reference. You can buy a used copy of the book and read it for yourself in substantial detail. It would be cheaper than hiring a good construction lawyer lawyer or consultant if you can’t make the argument yourself. This is not a novel example. Good luck. 🤠

Sorry that I don’t have time to review the discussion of the term “equitable adjustment” and the distinction between clauses that do or don’t specifically provide for an equitable adjustment of the contract price in the seminal reference book Administration of Government Contracts. I don’t have direct access to it where I am right now.

This is a good question. An equitable adjustment, per the Government Contracts Reference Book, is essentially a price adjustment, based upon a change in costs, (whether an increase or decrease) plus a reasonable allowance for profit. The Supreme Court has ruled on the question of including a profit allowance in the term “equitable adjustment”. I don’t have the reference. This is distinguished from an adjustment to the contract price that is strictly based on a change in cost, without any reference in the basis of entitlement that would provide for an equitable adjustment of the contract price. It appears to me that there is a distinction in the paragraphs in 52.242-15 to the basis for entitlement between an equitable adjustment and a price adjustment for change in costs.

You can do a Search in WIFCON for warranty issue threads

I found al thread from 2023 - similar situation .ive dealt with is this over the years working for the Corps of Engineers hope this helps. Picking up daughter now at airport. Good night 🌙

I’ll check my edition of Administration of Government Contracts tomorrow.

It was not uncommon in my experience for Military installations to call contractors back under a warranty without inspecting and/or establishing the cause of the problem or that it was even related to the contract work.

We’ve discussed this before in the Forum and I believe that it’s discussed in the book Administration of Government Contracts. When the government directs a contractor to return pursuant to a warranty clause, the contractor returns and inspects the problem. If it is determined that it isn’t a warranty problem, then the government would be responsible for costs incurred by the contractor in complying with the government direction. Sackinator didn’t say that the roofing subcontractor fixed the non-warranty problem, only that it determined that the leak was unrelated to the contract work. “52.246-12 Inspection of Construction. (i) Unless otherwise specified in the contract, the Government shall accept, as promptly as practicable after completion and inspection, all work required by the contract or that portion of the work the Contracting Officer determines can be accepted separately. Acceptance shall be final and conclusive except for latent defects, fraud, gross mistakes amounting to fraud, or the Government’s rights under any warranty or guarantee”. 52.246-21 Warranty of Construction “Warranty of Construction (Mar 1994) (a) In addition to any other warranties in this contract, the Contractor warrants, except as provided in paragraph (i) of this clause, that work performed under this contract conforms to the contract requirements and is free of any defect in equipment, material, or design furnished, or workmanship performed by the Contractor or any subcontractor or supplier at any tier.” After final acceptance, the burden is on the government to establish that any failure is the responsibility of the contractor under either clause above.

Ah yes. That brings back memories of my first contract negotiations class in 1981. Our instructor was a retired GS-17. He said that the UK tendering and subsequent contract requirements were essentially a soft “starting place for discussions” (even after award). That was about 44 years ago.

Carl, not sure if you are making a connection of FAR to pre-FAR as “starting all over”. As I recall the FAR was intended to consolidate the DOD and several non-DOD acquisition regulations and to provide more uniformity, consistency and standardization to the various acquisition processes across the government. Much of the Defense Acquistion Regulations (DAR formerly entitled ASPR) were brought across as I recall, at least in my areas of engineering and construction contracting. Actually, the Defense Acquistion Regulations Council under the FAR Council (DAR Council) is probably the organization that promulgated the DAR. The Nash and Cibinic first edition of Administration of Government Contracts was published in 1981. The first edition of Formation of Government Contracts was published in 1982. The second edition of these books were published in 1985 after the FAR was effective in 1984.

Do the other governments have equivalent coverage to the US FAR Part 19 Small Business and the various Small Disadvantaged Business Programs as well as all the other social program requirements? Labor program requirements? Has everyone here ever seen the size of the US Department of Labor Headquarters in Washington DC ? It’s one of the largest. Not saying these are all bad programs but they do affect costs and add many pages to the acquisition regulations. Many State and local acquisition regulations serve much smaller jurisdictions, interests, scopes and programs. Many simply reference Federal requirements that are applicable to their jurisdiction, such as OSHA safety and health, EPA, etc…

I ran across this DBIA webpage on Federal Sector DB : https://dbia.org/federal/ Craig Unger is the guy that I recommended to you. Unger Security Solutions. Search “Craig Unger DBIA” and you will be able see his background, contact information and several websites. He was once the President of the DBIA. You can mention me as a reference if you write or call him to discuss any recommended approaches or possible assistance available.

I agree in principle with Carl. But the DBIA has owner members too. It’s pretty balanced. However, their contract format isn’t totally formatted for Federal Government contracts with the DB clauses, if you are a beginner. If you would like to hire a D-B coach/consultant for any phase of the acquisition from developing design criteria, developing the RFP, source selection and how to manage/execute the contract, I can direct you to an excellent person, who I’ve known for 25 years or so. He was the chief of Contracting for the Bureau of Federal Prisons successfully using DB for new Prisons. He teaches several different DB classes and has advised government owner teams for years. He is a Fellow with the DBIA. I don’t know if the USACE is still conducting the lifecycle D-B Course Classes. They allow outside agencies to attend. They have condensed it and were conducting it over the web a couple of years ago. Most of my fellow practitioners and teaching partners have retired.

My comments above concerning D-B were in response, to explain my opinion that the FAR is seriously lacking in guidance on how to effectively execute successful D-B programs. Particularly in defining the differences between the contractual roles, responsibilities and legal distinctions of the contract parties for traditional D-B-B and D-B acquisition approaches. The FAR and most agency written policies, procedures and practices were and still are written for traditional design-bid-build construction.

Many minor construction projects are examples of other than commercial acquisitions. The risk allocations and legal ramifications for private, commercial, state and local construction vary widely using industry or commercial terms and conditions- which may or may not be biased toward the specific industry. The few FAR clauses specifically applicable to construction establish traditional and consistent risk allocations, and terms. Regarding Design-build construction contracting, great, good average, mediocre and poor design-build practices and experiences abound both within and outside the government sectors. There is considerable amount of litigation in non-government D-B contracting and post contract completion situations. There are numerous organizations with their own model design-build contract formats and terms and conditions, which are often written to protect the interests of the organization and are sometimes conflicting or inconsistent with each other. I was a D-B practitioner for over twenty five years with the USACE, for a couple years before that in industry and even as far back with the Air Force in 1971-1972. I taught D-B for 20 years for USACE I was a member of the Design-Build Institute of America, until recently after full retirement, including the DBIA designation as Design-Build Professional® (DBIA®). I taught some classes for DBIA and made presentations at National DBIA conferences. I was on a DBIA Federal Sector committee, which advocates best practices for government D-B programs and projects. I was a member of the Program Management Team for the Military Construction (MILCON) Transformation Program for over ten years. We developed procedures and Model RFPs for performance-based and stream-lined acquisition, design-standards and execution for D-B projects for the ~ $50 billion Army Transformation Program.