alexreb

Appendix O of Corps Pamphlet EP-715-1-7 provided by Vern includes a sample "presolicitation notice", which is the type of notice I use. I've always been hesitant to use a combined synopsis/solicitation type notice, but it seems when I use the presolicitation notice I always get a few firms asking if something else will be forthcoming. I've looked over several notices on FBO (mostly Corps and Navy offices) and it appears there is no standard type of notice to use, as some use combined synopsis/solicitation, others use presolicitation and still others a sources sought type notice. I've always been curious about that, so I posed the question to the FBO help desk (Federal Service Desk). It's been elevated it to tier 2 support. I'll post their response when I recieve. Thanks all.

What is correct "Notice Type" or "Type of Notice" to use for posting an A-E request for SF330's to FBO (combined synopsis/solicitation, presolicitation, special notice)?

Award was made from sealed bidding (price alone). Contractor's CY price for levee construction was highest of all 6 bidders (approximately 20% higher than the next lowest price and 200% higher than the lowest bid, but about 22% lower than the government estimate). Contractor subcontracted for all the levee construction work. However, the subcontractor that the contractor originally intended to use for the work was not the same sub that contractor actually used during project (same for dredging work, too). I haven't requested any info from contractor pertaining to their site investigation activities, but the subcontractor that performed the work did not attend the site showing and was not listed on the IVL (FBO). We are having another geotech firm analyze the dike construction problem to determine if contractor's claims are true, as well as provide their opinion about constructibility (contractor also claiming they depleted all available earthen material attempting to build the levee). Also, I had one of our engineers contact their counterparts with the Corps and the State, who both have been invovled in this type work. The Corps has confirmed that they've never ran a bearing analysis for their projects. Still waiting on the State. I'm glad you mentioned that not being able to build at contract price doesn't carry much weight in such matters. After the levee construction failure occurred, the contractor stated that staged construction was not an option because it would have increased the cost of levee construction, as well as the contract performance time. However, contractor chose to use an 18" dredge, while contract allowed up to a 24" dredge. From my engineer's calculations (using a corps dredging program), it would take twice the time using an 18" dredge as it would to use a 24" dredge. My point being that additional levee construction time would have been available if a larger dredge was selected. Really appreciate your comments.

I need to determine to if contractor should be responsible for a construction failure under a performace specification. On p. 517 of Cibinic and Nash's Administration of Government Contracts (4th Ed.), the authors state that a contractor may have an "elevated duty" in investigating subsurface conditions and they reference the below ASBCA case: See Pitt-Des Moines, Inc., ASBCA 42838, 96-1 BCA 27,941 (assumption of design responsibility imposes a greater duty on contractor to conduct a site investigation In my case, the contractor was to build an earthen levee to contain dredge material (marsh creation project). The specification for the levee was a performance specification. It required the contractor to determine "...parameters such as top width, side slopes and berm width to ensure that the hydraulically placed material remains contained during the placement operations." Clause 52.236-3, Site Investigations and Conditions Affecting the Work was included in the contract. Clasue 52.236-4, Physical Data, was also included in the contract and made a geotechnical report and other geotechnical info available for viewing at our office (contractor did not view the available geotechnical report/information prior to bidding). Contractor was unable to build the levee and claimed defective specifications due to impossibility. Government rejected this notiion and felt the contractor's chosen means and methods contributed to the failures. Contractor hired a geotechnical consultant who reported that the levee construction failure was due to unsuitable soils. The consultant's report also stated that the government failed to perform a load bearing analysis that would have shown soils were to weak to support the planned levee. The government engineers agreed that a bearing analysis would have been beneficial, but still felt it was possible for levee to be built if contractor would have used other means and methods during construction, e.g., using staged construction, mainting a sutable berm at base of levee, and limiting the depth of cut during excavation. Contractor disagreed with government engineers The geotechnial consultant used information from the geotechnical report referenced in the Physical Data clause to perform the bearing analysis. That in itself shows that the information for the bearing analysis was available to bidders. Because of the Pitt-Des Moines decsion (which I haven't been able to get a copy of yet), it seems plausible to me that the contractor may should have been expected to examine the geotechnical report and other available geotechnical information, and make their own determination about the suitability of the soils. However, I can see the other side of the argument that says a contractor need only make a "reasonable" investigation of the site and available data and they do not need to perform their own testing to determine if site conditions are suitable (discussion on pp 516-520, Cibinic and Nash, Administration of Government Contracts, 4th Ed). This is my first time dealing with a site investigation issue under a performance spec and I'm not really sure how to apply the higher level requirement. Could someone point me to some references on the subject or shed a little light on the subject? Thanks.

The basic EA formula is "what it would have reasonably cost to perform the work as originally required and what it reasonably cost to perform the work as changed." Cibinic and Nash, Administration of Government Contracts, 4th Ed. How does that apply to work performed for a prime by a sub. For example, if prime's bid price is $5.00 each and a sub performs the work for the prime at price of $3.00 each, then is the original cost to do the work considered the sub's price of $3.00 or the sub's cost to perform the work?

How do you determine which party assumes the risk of impossibility in the case of defective performance specification (performance determined to be impracticabile or impossibile)? The way I understand it, under a defective performance specification, a contractor can only recover if the government assumes risk for impossibility of performance.

fixed-price construction

charles, It was design spec. Defect wasn't patent so engineers had to analyze problem to determine source of problem and implement solution. C/O was issued immediately after solution was found in effort to avoid work suspensions/delays. IGE was obligated and used as NTE amount. The source of problem was verified later. At the time, we were more concerned about getting the work done and avoiding delays than determing fault. Are you saying I should've waited until source of problem was verified before issuing C/O? Since I am confident the government can prove it's claim, the sentence you quoted should've read "Now contractor is not entitled to payment for the work performed under the change order.? Contractor fault, contractor pays.

Thanks.

Thanks.

A change order includes NTE language that states something similar to "The government's obligation for work under this change order will not exceed $X.XX amount. The contractor will notify the KO before exceeding the amount." The change order is for additional work requirements to fix defective work. The defects are thought to be the result of faulty specs. After the change is issued, it is found that the specs were not faulty and the contractor was responsible for not meeting the specs. Now it appears the contractor is not entitled to payment for the work performed under the change order. Does it matter that the NTE amount was obligated in the contract and the contractor proceeded with the work under the assumption they would receive payment? If a portion of of the NTE amount was already paid, is government entitled to a credit? Alexreb

FYI--I left a telephone voice message with the FAR Case representative on 1/7/11, but to date have received no response. I also followed that up with an email request for his opinion (1/12/11), but received no reply. The email provided him a link to this discussion for purpose of showing the different interpretations/opinions regarding this matter. Great in depth discussion. As I said earlier, I think which ever way I go I'll have a lot of ammo to back up my position (more than enough).

I left a voice message with the procurement analyst listed in FAC 2005-48 to contact me about this issue. I've followed this "debate" with interest from the sideline and believe both sides have merit. Which ever position I choose, I should have plenty of ammunition to back up my reasoning. Great discussion. I'll post Mr. Morgan's comments when he returns my call.

He didn't provide any references. I just asked for his opinion.

If LBM decision applies then it is a "legal requirement" for a CO to consider ALL acquisitions under 19.502-2(. This issue doesn't appear to be clear cut by any means, my PCR is under the opinion that we should be able to continue awarding task orders under our current contracts (by-passing 19.502-2( determination). But he also mentioned that we should consider letting our contracts expire and going out for new awards.