joel hoffman

I agree with Carl. However, when a mod involves a change in the contractor’s costs (I.e., not a standard charge or price), then some form of cost analysis may be necessary.

So what you are saying is that, notwithstanding that changes require mutual agreement, the contractor is free to charge whatever it wants, regardless of reasonableness when negotiating modifications that involve a change in the contractors costs?

We often encountered situations in construction contracting where local trade labor rates were higher than those listed in the Davis-Bacon wage rate determination. It would be the contractors’ responsibility to offer/pay what was necessary to attract and retain the numbers of skilled tradespersons to complete the contract work.

I believe that the main question concerns the purpose for the FMS funds appropriation.

I think that the OP has checked out long ago.

P.S., if you have a telephone, why can’t you call the office you emailed? This is an unofficial website and you didn’t provide much explanation why the client organization thinks that FMS funds are appropriate for what is usually O&M type funded work ( “repair a roof “at a domestic base).

Agree. Google: “FMS funding” that should answer some questions while you wait for your funds authority to respond. Your legal office should have a fiscal explanation for their opinion. Can you even use FMS funds for construction type contract for a roof repair on a US Base? Based upon experience installations will often try to improperly use funds for similar types of work.

Regarding warranties, it isn’t uncommon for the government to make warranty calls for damage or failures that turn out to be not covered by the warranty, such as lack of maintenance, user errors, breakage by other causes, etc. I’ve seen this numerous times. In those cases, the government would generally mod the contract to reimburse the contractor for the warranty call and any remedial work performed. During the warranty period, both parties have rights under the contract depending upon who is responsible for an action (risk allocation). These rights, duties and obligations survive inspection, acceptance and final payment.

I pretty much agree with Carl l. I would explain the risk allocation under the Permits and Responsibilities clause to my contractors is such cases or to my contract admin offices when I was at District or Division Level. However, I would also explain that, depending upon the circumstances, the Builders Risk policy may likely cover expenses to repair damaged work. Also, that a time extension could be considered under the Defaults Clause, if necessary and warranted for delays to completion not due to fault or negligence of the contractor or it’s sub(s) or suppliers. Its up to the contractor as to whether or not they want to submit an insurance claim or absorb the repair costs. Open and honest communications with my contractors, including mitigation options fostered good relationships. Construction contracts usually allocate risk assumptions both ways.

If the contractor has Builders Risk coverage, there should be no risk of damaging relationships. Especially if the contract requires such coverage. Regardless, the cost for such insurance coverage should be reflected in the task order prices that the government is paying…

I am out in the woods, walking my dog right now. I don’t have access to my reference books. However, you should obtain a copy of or access to the Nash and Cibinic series “Administration of Government Contracts”. Mine is at home. I’m sure that it covers the situation and the clauses that apply here . You need to determine what insurance was required or otherwise voluntarily provided to cover such contractor risk of loss or damage for this contract. it appears that you work for the government side of this contract. At the very least, I would think that you would have a contract attorney that should at least be knowledgeable with the contract Attorneys Deskbook and the contract clauses. Sorry about the quality of voice dictation.

I agree.

This is in addition to the first stated responsibilities. Read the definition of contractor acquired property and government property. This isn’t “Government Property” provided to the contractor for performance of the work. The Permits and Responsibilities clause requires the contractor “to be responsible for” the contractor provided materials and work prior to inspection and acceptance of the work. As discussed above, there should be insurance required to cover deliberate or accidental damages to the materials. Builders Risk policies likely cover damage to the work for deliberate vandalism. What does the contract require??

The clause at 52.228-5, Insurance-Work on a Government Installation should be in a construction contract on an installation and there should be specified types of insurance required by the contract. Builders Risk insurance should likely cover deliberate or accidental damages to materials and work prior to inspection and acceptance.

The Contractor is responsible for protection of the new work prior to acceptance of the work. See 52.236-7 Permits and Responsibilities. As prescribed in 36.507 , insert the following clause: “Permits and Responsibilities (Nov 1991) The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work. The Contractor shall also be responsible for all damages to persons or property that occur as a result of the Contractor’s fault or negligence. The Contractor shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work, except for any completed unit of work which may have been accepted under the contract.” FAR 52.245-1 is not applicable.

What is the stated required purpose of the office, if any? If not stated what would the function of the office be ? In other words, what is the actual stated requirement?

Vern, I don’t disagree with you. And a specific texting ban is just an example of the insatiable need to add regulations , many of which are already covered by state, local laws, regulations, etc. that many contract administrators don’t enforce anyway. This would be a specific one which probably wouldn’t be enforced either. As an example, yesterday on the WIFCON Homepage, there was an article citing a GSA OIG Report regarding lack of administration and oversight of the actual performance of building maintenance contracts. Doesn’t surprise me in the least. https://www.oversight.gov/report/GSA/Building-Maintenance-Contractors-Are-Not-Complying-Their-GSA-Contracts-Due-Poor “Building Maintenance Contractors Are Not Complying with Their GSA Contracts Due to Poor Performance and Ineffective Oversight”.

Ok, so there has been at least one executive order directing all agencies to include language in contracts to ban or encourage contractors to ban texting while driving for performance of contracts. I didn’t read the prescription and background for the clause mentioned in this thread: But here one by Obama:from 15 years ago in 2009: “Executive Order 13513 --Federal Leadership on Reducing Text Messaging while Driving THE WHITE HOUSE Office of the Press Secretary ___________________________________________________________________________ For Immediate Release October 1, 2009 EXECUTIVE ORDER - - - - - - - FEDERAL LEADERSHIP ON REDUCING TEXT MESSAGING WHILE DRIVING“ https://obamawhitehouse.archives.gov/the-press-office/executive-order-federal-leadership-reducing-text-messaging-while-driving EDIT: ok, looks like this is the source for the new FAR coverage to “encourage contractors to implement policues banning texting while driving. looks like this is more wishywashy than actual state, local and federal laws, regulations and policies…🤠

As of Sep 2023: “Text messaging ban: 49 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban text messaging for all drivers”. See, for instance: https://www.ghsa.org/state-laws/issues/distracted driving I believe that there are contract clauses that require conformance to State, local and installation laws and regulations. See, for instance, 52.236-7 Permits and Responsibilities applicable to construction contracts. “The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work.” I’m not going to research it tonight but I’d bet that every installation specifically prohibits texting while driving, either directly or by citing applicability of state driving laws to driving on base. See also : https://www.fmcsa.dot.gov/newsroom/us-transportation-secretary-ray-lahood-announces-federal-ban-texting-commercial-truck

If the state law prohibits texting while driving, that likely is already a contract requirement. No need to duplicate it…

We had a clause for this when specific proposed key personnel positions were a discriminator. The qualifications and experience of the named key personnel meeting or exceeding the minimum solicitation requirements became the standard for KO approval of any proposed substations after award. If key personnel were only evaluated to ensure technical acceptability, then proposed substitutes would have to meet the minimum solicitation/contract requirements. I don’t remember making a technically acceptable key personnel evaluation during a source selection for routine contract performance but it could be done if that is the objective. It would depend upon the reason for evaluating proposed key personnel.

No didn’t know.

Can one or both of the bidders or offerors provide the compliant product if you conduct discussions and allow them to revise their proposals (assuming not an IFB)?

How are they “responsive”? You said that they are non-compliant with the terms of the solicitation and a waiver is unavailable. Is this an IFB? Did you mean that they are “in compliance” (RFQ or RFP)? If so, how?

Some of the references I read indicated that you must submit a protest over an improper NAICS designation within 10 days of the date of publication of the solicitation.