joel hoffman

33 minutes ago, C Culham said:

I wasn't reffing, just gone.   You might find this previous discussion interesting especially since roof is a common denominator.  

 

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. 

11 hours ago, C Culham said:

Maybe the true path forward is forget the FAR and trying to do anything with it and just start all over again.   Wasn't that what happened 40 years ago when the FAR was codified and promulagated? 

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. 

13 hours ago, General.Zhukov said:

What are other governments (state, local, foreign, multi-national) doing?  is anyone doing it better than us in a way that we can learn from?  

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. 

7 hours ago, Voyager said:

@joel hoffman Where does one find the best guidance on how to effectively execute successful D-B programs today?  Applicable to my workload.  Thanks.

6 hours ago, C Culham said:

From the industry side consider the Design Build Institute of America

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. 

2 hours ago, C Culham said:

Are not quality design-builds being practiced every day by other than the Federal government? 

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. 

What is an ATP? “Available to Promise”?

Depends upon what you are selling and to whom. Are you saying that you are a supplier to customers who are prime contractors on government contracts and are you referring to sales tax? I think so.

28 minutes ago, C Culham said:

In a simple view simplified acquisitions be renamed to commercial acquisitions.  

Not all simplified acquisitions are “commercial acquisitions”.

41 minutes ago, C Culham said:

Why wouldn't it be the perfect opportunity to finally do something about prevailing wages?  Afterall one would think the catch all - comply with state and local law - would set a bar for competitive wages  considering how states and even local justisdictions have changed the wage landscape since Davis Bacon and Service Contract Act became statutes.

Good luck with the Davis Bacon arena. In fact, the current $2500 threshold since (1933 I think) is lower than the original threshold (1928 I think). Going from memory; didnt refresh my search from a few months ago. And that ridiculous threshold isn’t based upon the labor portion  of a construction acquisition. It includes the total cost, including equipment and materials and markups for indirect costs and profit…. There could be only a few labor hours involved…🤪

43 minutes ago, C Culham said:

Why not when abandoning agency supplements, abandon agency policy too? 

I don’t think that either abandonment would be practical. There are many areas where agency specific procedures and policies are unique or aren’t covered by the generic FAR. Some Examples off the top of my head are DOT/FHWA and Design-Build Construction.

There is virtually no coverage in FAR of the vastly different roles and responsibilities of the parties in Design-Build vs. Design-Bid-Build. My agency attorney at the time (1996) that D-B was first addressed in Part 36 was the Part 36 DAR Chairperson. She said that the FAR coverage for D-B was limited to specific issues at the time. Plus the Committee members didnt really have much if any understanding of the differences between government furnished design roles, responsibilities and liabilities and when the Contractor is responsible for the design. Many other distinctions too. 

9 hours ago, formerfed said:

 …a few hundred pages of guidance and train and empower the best and brightest to implement…

I don’t think this is feasible on the scale necessary to successfully complete all required Federal acquisitions.

And my primary question is still…will this reduce overall acquisition and lifecycle costs ? The spending deficits are unsustainable. 

What is the expected benefit and specific outcomes? Making it easier to spend more money quicker?

That’ll likely go over like a lead balloon unless the proponents can also establish that it will reduce annual expenditures…

3 hours ago, Vern Edwards said:

A new home page should appear within the next two weeks, and updates should return about the same time.

Some technical problems must first be resolved.

Thanks again, Vern. 🤠

Absolutely ok. It’s a common practice in commercial renovation or repair projects when a firm visits your home, for instance. Some examples are door and window replacement projects, bathroom redo’s, etc. 

This link is to a YouTube video of a Congressional Speech by Senator John Kennedy, which includes descriptions of some of the spending and contracts by USAID that have been discovered so far in an Agency Audit. You can skip the opening remarks and Rhetoric and go to the audit descriptions and amounts…

“BREAKING NEWS: John Kennedy Breaks Down Federal Spending 'Line By Line' In Epic Defense Of Elon Musk”

https://youtu.be/BA3ma1MeSIU

Sure seems reasonable to me to be able to audit where and what $40 billion per year is being spent by USAID.

What are “illegal DEI and DEIA” policies vs. “legal Accessibility” policies…?

Opinion - Thats what happens while one keeps campaign promises on the first day in office with questionable competent or adequate advice and knowledge of the scope of the executive order...

Reasonable accessibility and accommodations go way back before - and yes, including the 2017-2021 timeframe.

I wonder who actually composed all those day 1 and shortly thereafter EO’s.   I seriously doubt if DT had the personal time to flesh out the necessary details…