1. Succeeding on USACE Construction Contracts
12MAR2015
Eric Pagoria, P.E.
Chief, Construction Branch
Nashville District
Tommy Long, P.E.
Resident Engineer, Oak Ridge

2. Topics Post-Award Process Pre-Construction Documents Key FAR Clauses
Three-Phase Quality Control
Submittals
QCS Software
Safety
As-Builts
Performance Evaluations

3. Post-Award Process

4. Post-Award Process Congratulations on award!? Submit bonds / insurance
TEN DAYS to submit to Contracting Office
Bonds/insurance reviewed by Gov’t
Once acceptable, Resident Office will coordinate “Pre-Construction Conference”
Notice to Proceed (NTP) issued at conference

5. USACE Field Team ACO = Administrative Contracting Officer
Authority up to $500K
Changes, Differing Site Condition, VEQ, VECP
Dual hat as Resident Engineer
COR/QAR - NO authority to change the contract!
COR = Contracting Officer’s Representative
Responsible for administering the contract
QAR = Quality Assurance Representative
Responsible for monitoring your programs

6. You can start work… Paper work!

7. What Does NTP Really Mean?
NTP is Day 0 of your contract duration
Duration is stated in FAR
Section of your contract
Contract Duration accounts for:
Pre-Construction Documents
Physical Work
Punch List Items, Final Inspection
Close-out Documents
Manuals, As-builts, Surveys, etc

8. Example IF your contract has a 360-day duration It likely includes:
days for Pre-Construction Submittals
days for Physical Work
60-90 days for Completion Documents
*Each contract duration is analyzed prior to solicitation based on scope of work and requirements.
*Days is “calendar days”

9. Pre-Construction Documents

10. Pre-Construction Documents
They control your ability to earn cash
Physical Work can NOT start until they are approved by Govt

11. Key Documents Accident Prevention Plan Quality Control Plan
Environmental Protection Plan
Schedule
Submittal Register
Permits

12. Accident Prevention Plan
Are you familiar with EM ?
“Safety and Health Requirements Manual”
APP is based on this manual
Safety is a Contract Requirement!
Refer to Spec Section of your contract
EM : 931 pages
OSHA compliance, too

13. Accident Prevention Plan
New Manual (EM ), dated 30NOV14
Contracts solicited after 1MAR15 will follow it
Follow Appendix A for APP development
Format/outline provided
Document must be accepted before physical work can commence
“Abbreviated APPs” do NOT apply to Construction contracts

14. APP Tips Do not deviate from Appendix A format
“N/A” is not acceptable
Explain why items don’t apply
Verify SSHO qualifications in specs
Varies by project
Verify in specs if SSHO can be dual-hatted
Depends on scope of work
Use checklist for APP development/review
APP needs to be SITE-SPECIFIC

15. Accident Prevention Plan
Acceptance of your plan is conditional
Gov’t reserves the right to require changes, removal of personnel, to obtain safety requirements
Gov’t can stop work for safety issues
You are responsible for entire site, all workers, and all visitors
Mutual Understanding Meeting
Held at time of acceptance
Discusses safety with key players

16. Quality Control Plan Interim Plan is due within 7 days of NTP
Need to know how your QC organization works
Who is “certifying” the submittals?
Interim is for first 30 days
Final Plan is due at Day 30
Follow “Content of CQC Plan” in Specs

17. QC Plan Tips Verify QC Manager qualifications in specs
Verify if QC Manager can be dual-hatted
Verify QC Team requirements in Specs
QCP needs to be SITE-SPECIFIC

18. Quality Control Plan Acceptance of your plan is conditional
Gov’t reserves the right to require changes, removal of personnel, to obtain quality requirements
Mutual Understanding Meeting
Held at time of acceptance;
Prior to start of work
Discusses quality with key players

19. Environmental Protection Plan
Must be approved prior to starting work
Address each topic from “Contents” para.
Level of detail dependent on environmental issues
Meet with Gov’t prior to submission to discuss implementation
Comprehensive document!
Noise, SWPPP, historical, cultural, wetlands, traffic, spills, recylcing, etc.

20. Schedule Gantt Chart or Network Analysis? If Gantt Chart…
Depends on specifications
If Gantt Chart…
Submit Preliminary Schedule 10 days after NTP
Covers first 60 days
Submit Initial Schedule within 30 days after NTP
Covers the entire project
Periodic Schedule Updates
Submit monthly or as instructed by COR
Includes narrative report

21. Schedule If Network Analysis Schedule…
Preliminary Meeting to discuss requirements
Must use Primavera
Must use Qualified Scheduler
Submit NAS
Must be accepted to start physical work
Cost loaded, reports, narrative, logic
Monthly Updates
Joint meetings to update progress schedule

22. Submittal Register Specification Section 01 33 00
Contract provides estimated list of submittals
It is a living document maintained by you;
Documents can only be deleted by Gov’t
Documents can be added by both parties

23. Submittals
Submittal Register

24. Submittal Register Tie Schedule Activity to each Submittal Item
Column (a)
Submit by, Approval By, Material By dates
Columns (g), (h), and (i)
Auto-populated by QCS once tied to Schedule
Accounts for Gov’t 30 day review period
Dates are used to measure progress

25. Permits Contractor is responsible for ALL permits
Unless stated otherwise in the specifications
Includes fees, paperwork, etc
Must show on your schedule

26. Key FAR Clauses

27. Federal Acquisition Regulations
FAR = The Foundation “Rules” we (GOV & KTR) must follow when executing a Federal Contract.
Can be accessed via FAR Site.
DFARS = Dept. of Defense Supplement
AFARS = Army, AFFARS = Air Force, etc.
UAI = USACE Acquisition Instructions

28. Key FAR Clauses LDs range from ~$500 to $7000 per day
Subpart 11.5 – Liquidated Damages (LDs)
– Policy
(b) LDs are not punitive and are not negative performance incentives (see ). LDs are used to compensate the GOV for probable damages.
(c) The Contracting Officer (KO) must take all reasonable steps to mitigate LDs.
LDs range from ~$500 to $7000 per day

29. Key FAR Clauses 52.211-12 Liquidated Damages – Construction
If the KTR fails to complete the work within the time specified.
If the GOV terminates…LDs will continue to accrue until the work is completed.
Time Extensions
The change order granting the time extension may provide that the contract completion date will be extended only for those specific elements related to the changed work and that the remaining contract completion dates for all other portions of the work will not be altered.

30. Key FAR Clauses 52.211-18 Variation in Estimated Quantity
If the actual quantity of the unit-priced item varies more than 15 percent above or below the estimated quantity, an equitable adjustment in the contract price shall be made upon demand of either party.
The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above 115 percent or below 85 percent of the estimated quantity.
If the quantity variation is such as to cause an increase in the time necessary for completion, the KTR may request an extension of time.

31. Key FAR Clauses
Construction Wage Rate Requirements (Formerly Davis-Bacon)
(b)(1) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week...the full amount of wages and bona fide fringe…due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor.
(c)(1) The KO shall require that any class of laborers or mechanics which is not listed in the wage determination …shall be classified in conformance with the wage determination.
Prime Contractor is responsible for compliance

32. Key FAR Clauses 52.222-7 Withholding of Funds
The KO shall ...withhold or cause to be withheld from the KTR under this contract or any other Federal contract…so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the KTR or any sub the full amount of wages required by the contract.

33. Key FAR Clauses 52.222-8 Payrolls and Basic Records
(b)(1) KTR shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the KO.
(c) If the KTR or sub fails to submit…the KO may, after written notice to the KTR, take such action as may be necessary to cause the suspension of any further payment. Furthermore, failure to submit…may be grounds for debarment action pursuant to 29 CFR 5.12.

34. Key FAR Clauses 52.225-9 Buy American – Construction Materials
(b)(1) This clause implements the 41 U.S.C. chapter 83, Buy American, by providing a preference for domestic construction material.
Note: If you are considering trying to get a waiver, keep in mind the process is long (6-12 months)

35. Key FAR Clauses 52.228-5 Insurance-Work on a GOV Installation.
(a) KTR shall... provide and maintain...at least the kinds and minimum amounts of insurance required in the schedule or elsewhere in the contract.
(b) The policies ... shall contain an endorsement to the effect that any cancellation or any material change adversely affecting the GOV’s interest shall not be effective --
(1) For such period as the laws of the State in which this contract is to be performed prescribe; or
(2) Until 30 days after the insurer or KTR gives written notice to the KO, whichever period is longer.

36. Key FAR Clauses
Payments under Fixed-Price Construction Contracts.
(e) Retainage. If the KO finds that satisfactory progress was achieved during any period for which a progress payment is to be made, the KO shall authorize payment to be made in full. However, if satisfactory progress has not been made, the KO may retain a maximum of 10 percent of the amount of the payment until satisfactory progress is achieved.

37. Key FAR Clauses 52.232-27 Prompt Payment for Construction Contracts
(a)(1)(i)(A) The due date for making such payments is 14 days after the designated billing office receives a proper payment request.
(a)(1)(i)(B) The due date for payment of any amounts retained...is as specified in the contract or, if not specified, 30 days after approval.
(a)(2) If the invoice does not comply...the designated billing office must return it within 7 days after receipt, with the reasons why it is not a proper invoice.

38. Key FAR Clauses 52.233-1 Disputes
(c) ...a written demand or written assertion by the KTR seeking the payment of money exceeding $100,000 is not a claim under 41 U.S.C. chapter 71 until certified.
(e) For KTR claims of $100,000 or less, the KO must, if requested in writing by the KTR, render a decision within 60 days of the request. For KTR-certified claims over $100,000, the KO must, within 60 days, decide the claim or notify the KTR of the date by which the decision will be made.

39. Key FAR Clauses 52.233-1 Disputes (continued)
(f) The KO’s decision shall be final unless the KTR appeals or files a suit as provided in 41 U.S.C. chapter 71.
(i) The KTR shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the KO.

40. Key FAR Clauses 52.236-2 Differing Site Conditions
(a) The KTR shall promptly, and before the conditions are disturbed, give a written notice to the KO.
(b) The KO shall investigate...promptly...If the conditions do materially so differ and cause an increase or decrease in the KTR’s cost of, or the time required for, performing any part of the work under this contract…an equitable adjustment shall be made.

41. Key FAR Clauses 52.236-5 Material and Workmanship
(a) All equipment, material, and articles incorporated into the work covered by this contract shall be new and of the most suitable grade for the purpose intended.
(c) All work under this contract shall be performed in a skillful and workmanlike manner. The KO may require, in writing, that the KTR remove from the work any employee the KO deems incompetent, careless, or otherwise objectionable.

42. Key FAR Clauses 52.236-6 Superintendence by the KTR
At all times during performance of this contract and until the work is completed and accepted, the KTR shall directly superintend the work or assign and have on the worksite a competent superintendent who is satisfactory to the KO and has authority to act for the KTR.

43. Key FAR Clauses 52.236-7 Permits and Responsibilities
KTR shall...be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations.
KTR shall also be responsible for all damages to persons or property that occur as a result of the KTR’s fault or negligence.
KTR shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work.

44. Key FAR Clauses
Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements
KTR shall repair any damage...resulting from failure to comply with the requirements of this contract or failure to exercise reasonable care in performing the work. If the KTR fails or refuses to repair the damage promptly, the KO may have the necessary work performed and charge the cost to the KTR.

45. Key FAR Clauses 52.236-13 Accident Prevention
(c) KTR shall comply with all pertinent provisions of the latest version of U.S. Army Corps of Engineers Safety and Health Requirements Manual, EM
(d) If the KTR fails or refuses to promptly take corrective action, the KO may issue an order stopping all or part of the work until satisfactory corrective action has been taken. The KTR shall not be entitled to any equitable adjustment of the contract price or extension of the performance schedule on any stop work order issued under this clause.

46. Key FAR Clauses 52.236-15 Schedules for Construction Contracts
(a) If the KTR fails to submit a schedule within the time prescribed, the KO may withhold approval of progress payments until the KTR submits the required schedule.
(b) If, in the opinion of the KO, the KTR falls behind the approved schedule, the KTR shall take steps necessary to improve its progress, including those that may be required by the KO, without additional cost to the GOV.

47. Key FAR Clauses 52.242-14 Suspension of Work 52.243-4 Changes
(a) The KO may order the KTR, in writing, to suspend, delay, or interrupt all or any part of the work of this contract for the period of time that the KO determines appropriate for the convenience of the GOV.
Note: If the delay by the KO is for an unreasonable amount of time, the KTR may be entitled to an equitable adjustment.
Changes
(a) The KO may...make changes in the work within the general scope of the contract.
Note: The majority of modifications issued are due to this clause.

48. Key FAR Clauses 52.246-12 Inspection of Construction
(b) KTR shall maintain an adequate inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract.
(c) GOV inspections and tests are for the sole benefit of the GOV and do not –
(1) Relieve the KTR of responsibility for providing adequate quality control measures;
(d) The presence or absence of a GOV inspector does not relieve the KTR from any contract requirement, nor is the inspector authorized to change any term or condition of the specification without the KO’s written authorization.

49. Key FAR Clauses 52.246-12 Inspection of Construction (cont.)
(f) The KTR shall, without charge, replace or correct work found by the GOV not to conform to contract requirements, unless in the public interest the GOV consents to accept the work with an appropriate adjustment in contract price.
(g) If the KTR does not promptly replace or correct rejected work, the GOV may –
(1) By contract or otherwise, replace or correct the work and charge the cost to the KTR; or
(2) Terminate for default the KTR’s right to proceed.

50. Key FAR Clauses 52.246-12 Inspection of Construction (cont.)
(h) If…the GOV decides to examine already completed work by removing it or tearing it out, the KTR, on request, shall promptly furnish all necessary facilities, labor, and material. If the work is found to be defective or nonconforming in any material respect due to the fault of the KTR or its subs, the KTR shall defray the expenses of the examination and of satisfactory reconstruction. However, if the work is found to meet contract requirements, the KO shall make an equitable adjustment.

51. Key FAR Clauses 52.246-21 Warranty of Construction
(b) This warranty shall continue for a period of 1 year from the date of final acceptance of the work. If the GOV takes possession of any part of the work before final acceptance, this warranty shall continue for a period of 1 year from the date the GOV takes possession.
(g) With respect to all warranties, express or implied, from subs, manufacturers, or suppliers for work performed and materials furnished under this contract, the KTR shall –
(1) Obtain all warranties that would be given in normal commercial practice;

52. Key FAR Clauses 52. 249-10 Default (Fixed-Price Construction)
(a) If the KTR refuses or fails to prosecute the work…with the diligence that will insure its completion within the time specified in this contract…the GOV may, by written notice to the KTR, terminate the right to proceed with the work…
(b) The KTR’s right to proceed shall not be terminated nor the KTR charged with damages under this clause, if
(1) The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the KTR. (e.g. Acts of God, Gov't., another KTR., Fires, Floods, Epidemics, Quarantines, Strikes, Unusually Severe Weather)
KTR can get time only for these delays

53. Key FAR Clauses
DFARS Modification Proposals – Price Breakdown
(a) The KTR shall furnish a price breakdown, itemized as required and within the time specified by the KO, with any proposal for a contract modification.
Note: Includes Material, Labor, Equipment, Subcontracts, Overhead.

54. Key FAR Clauses DFARS 252.243-7002 Requests for Equitable Adjustments
(b) In accordance with 10 U.S.C. 2410(a), any request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold ($150K currently) shall bear, at the time of submission, the following certificate executed by an individual authorized to certify the request on behalf of the KTR...

55. Key FAR Clauses
USACE Acquisition Instruction (UAI) Special Contract Requirements. Equipment Ownership and Operating Expense Schedule
When both ownership and operating costs cannot be determined for any piece of equipment or groups of similar serial or series equipment from the KTR's accounting records, costs for that equipment shall be based upon the applicable provisions of EP , Construction Equipment Ownership and Operating Expense Schedule

56. Key FAR Clauses FAR 52.248-3 Value Engineering – Construction
Research / Reading this is your homework assignment.
Bottom Line: If you've got an idea to do something cheaper, don't submit it as a variation on a Transmittal, send us a Value Engineering Change Proposal.
Plan in advance, lengthy process (~2-4 months) for approval.

57. Three-Phase Quality Control

58. Three-Phase Quality Control
Purpose
Requires KTR to plan and schedule the work to ensure that they are prepared to start each new definable feature of work.
The three phases of control (preparatory, initial, and follow-up) are the core of the Construction Quality Management System.
When they are properly performed, success in completing the work to comply with requirements of the contract is enhanced.

59. Three-Phase Quality Control
Contractor’s (CQC Manager’s) Responsibilities
Develop, schedule and implement procedures for tracking control phase meetings for definable features of work in the QC Plan.
Notify appropriate personnel of time, date and agenda.
Conduct Meetings (preparatory and initial).
Safety considerations and Activity Hazard Analyses (AHAs).
Document actual discussions and provide minutes to attendees.
Monitor work in place through follow-up phase.

60. Three-Phase Quality Control
Preparatory Phase: (Prior to each Definable Feature of Work)
A review of applicable contract documents (Plans, Specs, and References)
A check to assure that all materials are on hand, have been tested, submitted, and approved.
A check to assure that provisions have been made to provide required control inspection and testing.
A review of the appropriate activity hazard analysis.
Discussion of procedures for constructing the work including the review of repetitive deficiencies.

61. Three-Phase Quality Control
Initial Phase: (~ 5% into a Definable Feature of Work)
Review minutes of Preparatory Meeting.
Check preliminary work.
Verify adequacy of controls to ensure full contract compliance.
Establish level of workmanship.
Resolve differences.
Check safety to include compliance with the safety plan and activity hazard analysis. Review the activity hazard analysis with workers!

62. Three-Phase Quality Control
Initial Phase: (cont.)
Example of establishing level of workmanship for laitance removal on mass concrete.
IMG_ IMG_0444

63. Three-Phase Quality Control
Initial Phase: (cont.)
Example of establishing level of workmanship for laitance removal on mass concrete.

64. Three-Phase Quality Control
Follow-up Phase:
Daily checks shall be performed to assure continuing compliance with contract requirements, including safety and control testing, until completion of the particular feature of work.
QC personnel should continually refer back to the standards set in the “Preparatory and Initial Phases.”
Checks shall be made a matter of record in the CQC documentation.
Final follow-up checks shall be conducted and all deficiencies corrected prior to the start of additional features of work.

65. Submittals

66. Submittals
Purpose:
Required by the contract in order to regulate the timely flow of materials to be incorporated into work.
Necessary to demonstrate that the proposed materials, etc., are in compliance with the contract.
Must be provided by the contractor in time to allow for the review, approval, procurement, delivery, and performance of the preparatory phase of the Three Phases of Control for an item before it is needed for construction.

67. Submittals Contractor Responsibilities:
QC Manager is responsible for ensuring, thorough detailed review, that all submittals are in full compliance with the contract.
ENG 4025-R Transmittal (and Certification)

68. Submittals Contractor Responsibilities: (cont.)
Must check the submittal schedule requirements against the Network Analysis System (NAS) or other approved construction schedule.
KTR constantly maintains and adjusts dates on the register as required by the contract activities to ensure the document reflects current information.
All variations must be fully described, identified and justified in the transmittal package.
If a variation is not identified on ENG Form 4025R, the Government may rescind any inadvertent approval.

69. Submittals
Submittal Register

70. Submittals
Transmittal Form (ENG Form 4025-R)

71. Submittals
Transmittal Form (Instructions)

72. QCS Software

73. Quality Control System (QCS) Software
What is it?
Why do we need it?
How do I learn to use it?

74. QCS Software
The Quality Control System (QCS) is the Contractor’s Quality Control module of the Government’s Resident Management System (RMS) and was developed to assist contractors in providing contract-required data to the Corps of Engineers.
By taking advantage of the monitoring and reporting aspects of this program, the contractor can perform quality control activities more consistently and within the requirements specified by the Corps of Engineers.

75. QCS Software So…what is it? Administration Quality Control Submittals
Import/Export
Contract Reports

76. QCS Software
Administration Tab

77. QCS Software
Quality Control Tab

78. QCS Software
Submittals Tab

79. QCS Software
Import/Export Tab

80. QCS Software
Contract Reports Tab

81. QCS Software
Contractor Action Items

82. QCS Software
Contractor Action Items (cont.)

83. QCS Software Training Resources QCS Manual
You Tube Videos (Jason Price - Ft. Worth District)
Google “USACE QCS Youtube”
Help Desk
(760)
Contact your Resident Engineer’s Office

84. Safety

85. Safety How effective is your safety program?
Identifying hazards
Mitigating risks
Proactive involvement of SSHO, QCM, etc
Enforcement
Documentation
SSHO needs to be seen and heard
SSHO needs to educate subs and workers on EM

86. Safety Violations Negatively impact performance evaluation
Result in work stoppage
May result in Board of Investigation
Possible removal of SSHO and/or others

87. As-Builts

88. As-Builts Maintain red lines in the field CADD files
Will impact payments if not maintained
CADD files
Microstation format, not AutoCAD
Need to hire someone proficient in Microstation!
Submit final as-builts within 14 days of substantial completion
This is part of contract duration

89. Performance Evaluations

90. Performance Evaluations
All evaluations are completed in CPARS
Evaluations are automatically transferred into PPIRS database
PPIRS – Past Performance Information Retrieval System
Agencies use PPIRS in source selections
Past Performance shall be evaluated for all source selections exceeding simplified acquisition threshold
PPIRS only displays most recent evaluation
Evaluations are maintained for 6 years

91. Performance Evaluations
Evaluations based on:
Quality
Schedule
Cost Control
Management
Utilization of Small Business
Regulatory Compliance
Other Areas (Safety, etc)

92. Performance Evaluations
Evals required on:
Construction contracts over $650K
All terminations for default
Frequency:
One eval if contract < 12 months
For contracts > 12 months
Interim evaluation(s) at 12 months
Final evaluation
Reports are not cumulative

93. Performance Evaluations
60 days to respond to eval in CPARS
Notified via to company representative
Provide response and concurrence or non-concurrence
Response reviewed by next level (Reviewing Official)

94. Wrap-Up

95. Eric’s Key Points CORs/QARs do not have authority to change a contract
Contract duration includes all pre-con and closeout documents
Performance evaluations matter
Documents need to be site-specific
Read the specs before you bid the job
Safety, Safety, Safety!

96. Tommy’s Key Points Read the contract before asking a question.
The more effort you show, the more I’ll want to help.
Ask to sit down at the beginning of the project and go over how you will be evaluated.
There will be conflict, a partnering meeting up front is a good way to lay out how you will deal with it.
Make sure the right people (i.e. field personnel) are attending Three-Phase Control meetings.

97. Questions? Eric’s email: eric.j.pagoria@usace.army.mil
Fort Drum DOL
Questions?
Eric’s
Eric’s phone: