Construction Period Services under an Expired PoP

[Flustered]

[I am new to this forum and this is my first post.]

Hi. I work for an SDVOSB AE firm with architectural and engineering projects currently in construction. On some of our projects in construction, the Contracting Officer has allowed our period of performance to lapse. Reading other threads in this forum, I understand the period of performance is largely misunderstood by almost everyone. However, I do know period of performance dates are required on all Government contracts by CFR 200.211. By CFR 200.211, the Federal agency must include a start and end date on all Federal contracts. CFR 200.211 defines Period of Performance as, “…the total estimated time interval between the start of an initial Federal award and the planned end date, which may include one or more funded portions, or budget periods.” 

On our construction projects with lapsed PoP's, the Government has not yet reinstated an AE end date. Granted, the Government is not to blame. Rather, on these construction projects, the Builder-Contractors (not us) have made several grievous errors, which has extended and delayed the construction completion date years beyond the original end dates. Without any realistic end date in sight, can the Government legally expect AE’s like us to provide advisory, construction period services for the Government, in what feels like perpetuity? It seems unfair, given neither the AE nor the Government are to blame for the construction delays. 

Please help. 

[joel hoffman]

What are the scope of services during construction and the basis of pricing for such services in your contract?

In other words, what are the specific contract terms and conditions for A/E services during construction , including efforts as well as payments for those efforts?

[joel hoffman]

15 hours ago, Flustered said:

Without any realistic end date in sight, can the Government legally expect AE’s like us to provide advisory, construction period services for the Government, in what feels like perpetuity? It seems unfair, given neither the AE nor the Government are to blame for the construction delays. 

My inclination is to say no, but what is your contract obligation for services during construction? That’s what I’m asking above.

[Retreadfed]

16 hours ago, Flustered said:

I do know period of performance dates are required on all Government contracts by CFR 200.211. 

You did not identify which title of the CFR you are referencing.  If it is title 2, your citation applies to grants and cooperative agreements, not contracts.

[Flustered]

 

6 minutes ago, Retreadfed said:

You did not identify which title of the CFR you are referencing.  If it is title 2, your citation applies to grants and cooperative agreements, not contracts.

Thanks Retreadfed! I was quoting CFR 200.211, which is Title 2, which is "Grants and Agreements." I suppose a contract is not a cooperative agreement...although perhaps it should be. 

[Flustered]

1 hour ago, joel hoffman said:

What are the scope of services during construction and the basis of pricing for such services in your contract?

In other words, what are the specific contract terms and conditions for A/E services during construction , including efforts as well as payments for those efforts?

Great question, Joel. Our contract with Government is a fixed fee, fixed-price, architect-engineer (A-E) contract. The specific terms include a fixed quantity of site visits, responding to Builder's RFI's, reviewing Builder's submittals, performing commissioning, producing as-built documents from Builder's marked up drawings, reviewing Builder's change order requests, and providing construction document revisions. Payments can be billed monthly. The complications are: 

1. Through the original builder's bonding company, there is a new, separate builder to complete the work. 
2. The Government never approved the original builder's schedule. [I understand most A-E contract's PoP for construction period services are tethered to the Builder's construction PoP.] 
3. Overall, the project is years behind schedule. 

[Flustered]

1 hour ago, joel hoffman said:

My inclination is to say no, but what is your contract obligation for services during construction? That’s what I’m asking above.

We have a task order (not RFQ, Purchase Order, or Delivery Order) from the Government. Over the years of construction, we have received some extensions for construction period services with commensurate fee modifications for time impacts. But, the former contracting officer transitioned away from this project. The new contracting team seem reticent to extend performance and compensate for time impacts. 

[dsmith101abn]

I don’t know if I can answer your question but can share an experience.

At my previous agency I inherited a contract like this where the AE was to provide construction period services and the period of performance was tied to the construction contractor’s completion date. The construction contractor had 700 days to complete the project and was 2 years behind with a pending termination for default when I left that agency. I thought the AE was due some compensation but everything I knew at the time I left was the AE was on the hook for providing responses to RFIs, ASIs, etc. and was contractually owed nothing.

Like Joel mentioned what’s your contract say?

You might want an attorney.

[Flustered]

10 minutes ago, dsmith101abn said:

Like Joel mentioned what’s your contract say?

 

The contract is silent on these matters. Contract requires A-E perform construction period services for a defined period of performance using calendar dates. Contract compensates A-E for a fixed fee. As precedence, Government has compensated A-E. 

The larger question that keeps arising in many threads is what does period of performance mean? It may be one term of many in a contract, but seems very relevant at expiration. 

[joel hoffman]

1 hour ago, Flustered said:

Requires A-E to provide services for a defined period of performance using calendar dates.

Please quote the exact language concerning the defined period of performance including the calendar dates that requires A-E to provide ?? Services.

It would to helpful to please quote the payment line items for all of the applicable services.

If the KO won’t extend the dates of the services, and provide additional compensation, then the Government might be in breach of contract.  

 

 

[Flustered]

2 hours ago, joel hoffman said:

Please quote the exact language concerning the defined period of performance including the calendar dates that requires A-E to provide ?? Services.

It would to helpful to please quote the payment line items for all of the applicable services.

Hi Joel, neither the original task order nor bilateral mods have this information. There are no payment line items for all the applicable services--nothing like that at all. This might be a different contract breed, who knows. thanks for your help and interest. 

 

[joel hoffman]

14 hours ago, Flustered said:

Hi Joel, neither the original task order nor bilateral mods have this information. There are no payment line items for all the applicable services--nothing like that at all. This might be a different contract breed, who knows. thanks for your help and interest. 

 

@Flustered, it appears that you aren’t directly involved in the negotiation, execution or administration of the A-E contract. There has to be a basis for making and receiving payments for the applicable services.

If there are no separate contract line items or specific identification in the contract or task order prices, these would likely have been defined or determined in a breakdown of the contract price (fee). This should occur during negotiations of the contract and task order(s) prices and during performance of the services.

It appears that you can’t determine the basis of the task order pricing or the defined period of performance including the calendar dates that requires A-E to provide (the various) services.

Therefore, I don’t think anyone here can answer your question other than to say, generally not.

On 7/31/2024 at 6:49 PM, Flustered said:

can the Government legally expect AE’s like us to provide advisory, construction period services for the Government, in what feels like perpetuity?

By the way, the contract for the A-E firm on the Category I, Major Defense Program for the Chemical Weapons Demilitarization to eliminate our Nation’s chemical weapons stockpile  lasted for multiple decades.

The A-E contract was very profitable. This included design, executing Engineering Change Proposals and maintenance of the Design Configuration Management through the design, permitting, Construction, Systemization, Operations and Closure phases of various Chemical Weapons Demilitarization Plants at multiple CW Storage sites in the U.S. and Johnson Island in the Pacific.

It provided attractive, substantial on-going business for the A-E firm. The Program was frought with decades of slippage for various political, environmental, technical, etc. delays. Numerous extensions of the Chemical Weapons Elimination Treaty with Russia have been necessary.

I worked on the CW Program for ten years, involved with eight of the ten US plants. Two of my employees had involvement with the Russian plant that the US was building. 

[Retreadfed]

23 hours ago, Flustered said:

I suppose a contract is not a cooperative agreement...although perhaps it should be. 

I suggest you read 31 U.S.C 6303-6305.

[general_correspondence]

typically the PoP on task orders out live the life of the IDIQ, for example if the IDIQ was a 5 year and the task order was awarded in year 4, and your order is now 2 or 3 years beyond the IDIQ PoP, the Task order would still be in full force.  However it sounds like you and the government may have had plenty of time to close out the FP Fixed work. I'm just guessing and possibly suggest open a Time and Material contract, it would minimize your billing to RFI' and actual design work from the general contractor

[joel hoffman]

10 hours ago, general_correspondence said:

typically the PoP on task orders out live the life of the IDIQ, for example if the IDIQ was a 5 year and the task order was awarded in year 4, and your order is now 2 or 3 years beyond the IDIQ PoP, the Task order would still be in full force.  However it sounds like you and the government may have had plenty of time to close out the FP Fixed work. I'm just guessing and possibly suggest open a Time and Material contract, it would minimize your billing to RFI' and actual design work from the general contractor

The A/E is performing any design work for changes, not the construction contractor (“builder”).

This is an A/E task order which includes the described A/E services during construction.

It might also be a separate task order for A/E services during construction on a project that the firm designed under a separate task order.

At any rate, the original poster doesn’t seem to be familiar with the time terms of the task order or the price breakdown structure of the “firm fixed price” task for performing the services and the basis for payments.

Normally, if a construction contract is significantly delayed, the government would extend the period of performance for the A/E’s services during construction under its separate contract.

After rereading a follow-up post by @Flustered, he or she said that the former KO did just that.

The original construction contractor apparently defaulted and was replaced.

“But, the former contracting officer transitioned away from this project. The new contracting team seem reticent to extend performance and compensate for time impacts.”

There lies the underlying problem. It would “seem” that Flustered has a recourse here for reimbursement for additional costs and/or compensable time extension.

We can’t answer Flustered’s initial question other than to say “generally, no” or Flustered’s “larger question” without knowing what the actual  terms of this contract task order are concerning required length of performance:

Flustered said:  “The larger question that keeps arising in many threads is what does period of performance mean? It may be one term of many in a contract, but seems very relevant at expiration.” 

Edited August 5, 2024 by joel hoffman

[joel hoffman]

Flustered and others here, please note that the bonding company is liable for additional government damage costs, including additional costs to extend the “Title II” (obsolete term) services during construction by the separate A/E firm.

i don’t know if the government can actually use those payments by the surety, though. Generally, any payments go to Treasury*  I don’t know but doubt that the surety can directly pay the A/E (supplementing government appropriations).

I once received a check from a surety on one of our construction contracts for over $400,000 in liquidated damages as part of a Default settlement . *However, it had to be deposited with the Secretary of the Treasury. 

[C Culham]

2 hours ago, joel hoffman said:

Flustered and others here, please note that the bonding company is liable for additional government damage costs, including additional costs to extend the “Title II” (obsolete term) services during construction by the separate A/E firm.

i don’t know if the government can actually use those payments by the surety, though. Generally, any payments go to Treasury*  I don’t know but doubt that the surety can directly pay the A/E (supplementing government appropriations).

I once received a check from a surety on one of our construction contracts for over $400,000 in liquidated damages as part of a Default settlement . *However, it had to be deposited with the Secretary of the Treasury. 

I think it depends based on the facts of a contract.   https://www.gao.gov/products/b-242274-0 

[joel hoffman]

Thanks, Carl. 

[Flustered]

I am not sure how to respond to Joel, whose comments I very much appreciate. As the AE, during construction period services (CPS), we don't receive compensation for each submittal, RFI, weekly OAC meeting, sidebar meeting, etc. Rather, we only have line items for general CPS services and site visits. However, our 1062-98 proposal is based on our estimated hours. So, from that perspective, we provide a defined number of CPS hours during a defined period. However, many projects extend WAY beyond the complete project schedule's end date, for reasons beyond our control. For these types of projects, intuition tells me the Government cannot AE's to work in perpetuity. But I cannot find FAR clauses to support my intuition.  

[joel hoffman]

Ok, so there are defined line items for the services during “ a defined period”.
What is the defined period? 

[C Culham]

1 hour ago, Flustered said:

But I cannot find FAR clauses to support my intuition.  

As the questions for clarification continue I am going to try and steer you a little bit different.

I hope when you say "FAR clauses" you mean in the contract?  Pardon what you may see as a dumb question but just making sure.

My thought, made without your specific contract in hand, is maybe you won't find a direct clause but it could be a weaving of reading the contract as a whole.   The payment clause of your contract, the work requirements along with some stated performance (as long as the construction contract continues?) etc.   

Another thought the "scope" has been defined by the 4 corners of the contract.  To this fact it seems you are questioning "scope".  So maybe look at it from that angle as you review your contract, every word of it, as you search for the answer that the government can not expect you to work in  "perpetuity".

Finally, it could be that you need someone to sit down with you and read the contract in total to help give advice.   As advice here in Forum is just based on the tidbits that are trickled out as the discussion continues.  So in seeking assistance there are many avenues but you might consider reaching out to the APEX Accelarator in your area.   Their help is usally free, it gives you the avenue to hand them the contract in total so I suspect they could be helpful in answering your questions.   Here is link -

https://www.apexaccelerators.us/#/

[Flustered]

8 hours ago, joel hoffman said:

Ok, so there are defined line items for the services during “ a defined period”.
What is the defined period? 

So far, the defined period has been our period of performance. But, for the project where the bond company stepped in to finish, there have been long lapses in period of performance coverage. Right now, we are in an expired PoP status. 

On another project in which our PoP is expired, the Builder is very very slow. This project is years behind the original construction end date. But no bonding company. 

My question is if our initial AE period of performance is tethered somehow to the Builder's initial period of performance. That would make too much sense, I guess. Looking online, I have seen some RFP's for AE construction period services that tether AE services to construction duration. 

The reality is, during construction, the Government appears ineffective at enforcing the Contractor's agreed upon, complete project schedule. End dates come and go, months flash by. As the AE, we're still attending all OAC meetings, reviewing resubmittals (even after submittal approvals--Builder's initial subcontractors often back out due to delays), and answering sometimes ridiculous RFI's. But, as months click by, the Government is not extending our AE period of performance and not approving our fee proposals. Instead, during these long lapses, the Government is directing us to work during expired PoP's, even threatening to issue no-cost time extensions for no additional fee. 

I'm not trying to vent, honest. I am simply trying to understand if the Government can legally demand AE's to provide advisory construction period services for under-performing Builders who turn 400-day construction projects into 4 year jobs. 

 

[joel hoffman]

This feels like trying to squeeze blood out of a turnip!! 
 

36 minutes ago, Flustered said:

So far, the defined period has been our period of performance.

What is your period of performance as stated in your contract/task order for services during construction?????? Is it now past the “period of performance”? 

37 minutes ago, Flustered said:

My question is if our initial AE period of performance is tethered somehow to the Builder's initial period of performance.

How can we know that? What does the contract say about the period of performance for your services during construction ? I don’t know how you could price the duration of those services if the time is indeterminate…

Without knowing all the facts and the contract language, we can’t provide definitive answers to your questions. 

[joel hoffman]

58 minutes ago, Flustered said:

But, for the project where the bond company stepped in to finish, there have been long lapses in period of performance coverage. Right now, we are in an expired PoP status. 

On another project in which our PoP is expired, the Builder is very very slow. This project is years behind the original construction end date. But no bonding company. 

It appears to me that you may have no further duty to perform any further services if your stated period of performance has expired.

But it depends upon the totality of the contract language. 

[Retreadfed]

On 8/7/2024 at 11:15 AM, Flustered said:

For these types of projects, intuition tells me the Government cannot AE's to work in perpetuity. But I cannot find FAR clauses to support my intuition.  

I don't know what your contract says, but have you considered what, if any, effect 31.U.S.C. 1342 has on this situation?