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Architecture & Engineering "Design-Build" and Biased Ground Rules OCI


govt2310

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12 hours ago, govt2310 said:

that the agency could make a reliable IGCE

Probably elementary but as I follow the comment made me have this thought.  Sometimes folks forget that the IGCE is a living document.  Adjusted throughout the acquisition process as all learn about the acquisition, inclusive of the Government learning from the experts (hoped for experts) in the private sector, especially those that the Government is actually negotiating with.

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2 minutes ago, C Culham said:

Probably elementary but as I follow the comment made me have this thought.  Sometimes folks forget that the IGCE is a living document.  Adjusted throughout the acquisition process as all learn about the acquisition, inclusive of the Government learning from the experts (hoped for experts) in the private sector, especially those that the Government is actually negotiating with.

Thank you, Carl!

We might also point out to govt2310 that there are various methods for developing IGCEs depending on the amount of detail available about the requirement.

I suggest that govt2310 invest in a copy of Cost Estimating, 2d ed., by the late Rodney Stewart. It's a good elementary treatise.

Stewart also co-edited the Cost Estimator's Reference Manual, 2d ed.

govt2310 might also look at DOD's Independent Government Cost Estimate, Handbook for Services Acquisition

https://www.acq.osd.mil/asda/dpc/cp/policy/docs/sa/DoD_IGCE_for_SA_Handbook.pdf

Lastly, govt2310 should consider devoting some time to studying the history of the acquisition process.

 

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On 2/20/2023 at 2:13 PM, formerfed said:

“ In order to apply this thinking to something else, like software design, development, and delivery, wouldn't an agency need Congress to pass a statute giving it this kind of authority?“

Nope.  Agencies have been using this approach over decades with “waterfall” development.  While many will argue having a single contractor do it all as opposed to competition among vendors at various stages, it often is done with one contractor doing it all.  The acquisition is broken up in the various stages -requirements analysis, design, development, testing, implementation, training, deployment, etc.  A common argument is braking the work into pieces that can be competed among a limited pool of multiple awardees so you aren’t at the mercy of the company that started.  No special authority is needed other than sometimes having to justify your acquisition process with OMB to get funding.

Agile is now a "bad word." Here I am still reminiscing about its praises being sang less than 4-5 years ago...

 

The more things change...

 

Government IGCE/SOO are just what they are, estimates.

In construction, design/build or design/bid/build is often done with a catalog software. There are many out there. I've utilized RSMeans.

Civil Engineering is our PM/SME, and develop the SOO. These are GS-7, 9, 11's typically -- or for the very experienced in the group, 12. Our actual engineers typically only worked design or A/E aspects. The SOO is created in RSMeans, but is a giant WAG. Often the person developing it might have a background in a particular trade. They might knock that trade out of the park. They are not a world-beater though when it comes to estimating. Neither is their supervisor, who approves their estimate. When the proposal came in over an internally agreed upon %, a revision was made with provided justification as to what changed and why (ex: "I forgot three other buildings. Didn't realize mold remediation cost so much. Incorrect sizing/amount of materials in initial estimate.") Thus, we had a revised IGCE.

 

For pure A/E design, it was/is often billed as a way for an organization who has budgetary constraints to finalize design options and defer construction to a later year.

In reality, what happens is the final design is approved, those who approved it leave or rotate prior to its utilization, and the new contracting officer is unfamiliar with FAR 36.608/ responsibility of the designer of record when they inevitably fail to capture 20-30 critical items. Judge advocate refuses to take the A/E to task over the issue, and six months pass while the DOR ignores e-mails. 

 

Design-Build in theory is a less contentious process, since the DOR is a sub of the prime and they are responsible for the design. The problem becomes that the original drawings provided to the contractor fail to mention thousands of miles of pipe. CE insists the contractor should have accounted for the risk that these additional pipes existed, for they had the opportunity to spend tens of thousands of dollars alongside the other contractors to scope the effort prior to award. Not a differing site condition at all, they cry -- insisting the contractor should eat the additional $2-3M.

 

I do miss construction. Never a dull moment.

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On 2/28/2023 at 4:15 PM, Self Employed said:

Design-Build in theory is a less contentious process, since the DOR is a sub of the prime and they are responsible for the design. The problem becomes that the original drawings provided to the contractor fail to mention thousands of miles of pipe. CE insists the contractor should have accounted for the risk that these additional pipes existed, for they had the opportunity to spend tens of thousands of dollars alongside the other contractors to scope the effort prior to award. Not a differing site condition at all, they cry -- insisting the contractor should eat the additional $2-3M.

govt2310 initially wondered how it is legal to do design-build and whether specific legal authorization is required to apply the concept to other types of acquisitions. My input only addressed the design-build aspects of govt2310’s questions.

Although not germane to the original post, Self Employed’s example likely pertains to design-build situations where the government provides industry a partially prepared, preliminary design for the D-B contract or task order competition.

The D-B industry disparages this approach and refers to it as “draw-build”. I was a member of the Design-Build Institute of America for many years,  was a “DBIA Designated Design-Build Professional” and and a member of the Federal Markets Committee.

DBIA membership includes all categories of stakeholders involved in D-B. Owner members of DBIA include private and various government and Institutional/Academic practitioners. 

Furnishing partially prepared designs with a mix of prescriptive and performance design criteria often causes all sorts of problems, which may result in claims and litigation over who is responsible for the adequacy of the design.

The government might not escape responsibility for “draw-build” design criteria provided to proposers. There are many case-specific factors to consider.

The “Spearin Doctrine” (see, for example: https://en.m.wikipedia.org/wiki/United_States_v._Spearin ) has developed from a 1918 US Supreme Court Decision applicable to a government furnished design on a traditional design-bid-build project. 

“…The owner impliedly warrants the information, plans and specifications which an owner provides to a general contractor. The contractor will not be liable to the owner for loss or damage which results solely from insufficiencies or defects in such information, plans and specifications.”)

The Doctrine has also been applied in modified forms where a party other than the “owner” may become responsible where it provides a design or specific portions of a design on a construction contract or on a design-build contract.

For design-build, the Doctrine can be complicated and might involve only various parties of the design-build contractor team or it may involve the owner and the design-build contractor.

See this article, for example:  https://static1.squarespace.com/static/5b73429c1137a64304bdfdba/t/5ba27dfe032be4e0fea66cfb/1537375766382/Spearin_Doctrine.pdf   “Can the Spearin Doctrine Survive in a Design-Build World: Who Bears Responsibility for Hybrid Specifications?”

 

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While researching the USACE Engineer Pamphlet 715-1-7 ARCHITECT-ENGINEER CONTRACTING IN USACE, dated 29 Feb 12, this morning, I copied this paragraph in Chapter 2, “Acquisition Planning” in response to govt2310’s initial post:

“2-3 Definition of A-E Services

”…b. Design-Build. A design-build contract is procured as a construction contract in accordance with FAR Part 36, and not as an A-E contract, since the A-E services are not the principal part of a design-build contract. If an A-E firm is used to prepare a Request for Proposal for a specific design-build contract, then the A-E firm will typically NOT be ineligible for participation in the design-build contract due to the conflict of interest and unfair competitive advantage (FAR Subpart 9.5) of the A-E firm preparing the RFP.”

https://www.publications.usace.army.mil/portals/76/publications/engineerpamphlets/ep_715-1-7.pdf

Note that the conflict of interest/competitive advantage concept there applies to preparation of a competitive solicitation for a requirement.

The conflict of interest and competitive advantage concern may be applicable to a firm hired to prepare the solicitation for the contract to design, develop and deliver software or other types of acquisitions.

But it isn’t  analogous to a firm selected for software design, development, and delivery.

Edited by joel hoffman
Added the word “NOT”.
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