In federal government construction, the standard federal inspection clause places primary responsibility for contract compliance on the contractor. 1852.246-74 Contractor Counterfeit Electronic Part Detection and Avoidance, 5252.246-9512 INSPECTION AND ACCEPTANCE (NAVAIR)(OCT 2005), 5252.246-9514 INSPECTION AND ACCEPTANCE OF TECHNICAL DATA AND INFORMATION (NAVAIR)(FEB 1995), 5252.246-9503 Significance of Systems Engineering Technical Reviews Required under this Contract (NAVAIR). An independent detailed assessment developed by a government team member A Statement Of Work should include the following: The work to be performed, location of work, period of performance, deliverable schedule, any special requirements. The independent contractor was responsible for correcting any safety issues. When "contracting out" governmental functions, it is the policy of the Government to utilize non-personal service contracts whenever possible. Under NAICS, construction and services are separately classified. The federal government frequently argues that its inspectors lack the authority to effect a constructive change. Choose the true statement from the following: A contracting officer may ratify an unauthorized commitment if the government received a benefit An option is the unilateral right of the government to extend or buy more than the amounts bought at the time of award. A contract's escalation clause specifies how fees, wages, or other payments will be adjusted to reflect changes in the price of labor or other inputs. Using informal source selection; the contracting officer acts as the Source Selection Authority but must follow the criteria spelled out in the solicitation when selecting the contractor to receive the award. Electronic Code of Federal Regulations (e-CFR), Title 48 - Federal Acquisition Regulations System, CHAPTER 1 - FEDERAL ACQUISITION REGULATION, PART 52 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES, Subpart 52.2 - Text of Provisions and Clauses. (e) The Contractor shall promptly furnish, at no increase in contract price, all facilities, labor, and material reasonably needed for performing such safe and convenient inspections and tests as may be required by the Contracting Officer. The party inspecting the work must perform such inspections adequately and without negligence. Which of the following is NOT a common problem found during invoice review? For example, in one case, a government inspection three days after the contractors request was held to be an unreasonable delay, but in another case a 10-day delay was not sufficient to make the inspection untimely.56 In both cases, the determination of reasonableness of the delay considered the state of the work and the nature of the work being inspected. (b) The Contractor shall maintain an adequate inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract requirements. Be sure subcontractor clients get the change orders they deserve. Common causes of a constructive change include: When there is a difference of opinion between the COR and the contractor on a specification within the contract, the COR should direct the contractor to perform in accordance with the COR's interpretation. Change orders exist because of the dynamic and complex nature of construction projects; for most projects, it's simply not possible to anticipate every challenge or variable from the outset. Introduction. Failure to inspect effectively, however, may affect the owners rights under applicable warranties once the project is accepted. In Continental Insurance Co. v. City of Virginia Beach,2 when the contractor filed bankruptcy during construction, the public owner called on the contractors surety to complete the project. 552.238-96 Separate Charge for Delivery within Consignee's Premises. 252.228-7005 Mishap Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles. Gross mistakes amounting to fraud. hbbd``b`j@$`;$I#36~0 - However, if the work is found to meet contract requirements, the Contracting Officer shall make an equitable adjustment for the additional services involved in the examination and reconstruction, including, if completion of the work was thereby delayed, an extension of time. The contractor, therefore, still must ensure compliance with contract requirements even though the government has conducted inspections. (c) Government inspections and tests are for the sole benefit of the Government and do not -. All work shall be conducted under the general direction of the Contracting Officer and is subject to Government inspection and test at all places and at all reasonable times before acceptance to ensure strict compliance with the terms of the contract. (CCH) 29172 (citing Opto Mechanik, ASBCA No. Therefore, the exculpatory provision excusing the architect from responsibility for construction methods and for the acts or omissions of the contractor did not immunize the architect from liability flowing from a breach of its duty to the owner.60. The contractor gives a federal employee tickets to a local production of a Broadway play. Provide appropriate adverbs to fill the blanks in the following sentences. Acceptance shall be final and conclusive except for latent defects, fraud, gross mistakes amounting to fraud, or the Governments rights under any warranty or guarantee. The government may inspect at any reasonable time before acceptance to ensure compliance with the contract. But enforcing a CCD against a contractor seemingly conflicts with the traditional common law rule that modifications to contracts must be mutual and supported by consideration. In most contractsfor example, the AIA A201 General Conditions of the Contract for Construction (2007 ed. Where the use of such criteria actually requires a level of performance in excess of that reasonably contemplated when the parties entered into the contract, the contractor may be entitled to extra compensation. Past performance assessments include input from the __________. The procuring Contracting Officer, Administrative Contracting Officer, Termination Contracting Officer, and the Contracting Officer's Representative are key players in the acquisition process. Likewise, Paragraph 15.05 of EJCDC C-700 requires the engineer to promptly make a final inspection with Owner and Contractor Where the owner has unreasonably delayed or interfered with the contractor in conducting the final inspection, the contractor may be entitled to a time extension and recovery of additional costs or breach of contract damages. Subjecting the contractor to inconsistent inspections amounts to an unreasonable interference with the contractors work and entitles the contractor to compensation.36, After inspection, an owner has the right to accept the performance, reject the performance if it is nonconforming, require correction of nonconforming performance, or, in appropriate circumstances, terminate the contract for default.37 To enforce its rejection/correction remedy, the federal government must provide the contractor with notice of the alleged discrepancy within a reasonable time after discovery of the defects. The contracting officer shall insert the clause at 852.236-79 . Classic examples of change orders include the owner's desire to move the location of a wall to accommodate some other design element, adding a window where there was none in the original plans, or changing the finish of the floors from tile to terrazzo. The association's pre-inspection notice must: (1) identify the engineer; (2) identify the specific units or common elements to be inspected; and (3) state the date and time of the inspection. employed. The Government Property policy at FAR 45.102 attempts to reduce the Government's risk when providing property to the contractor. CONSTRUCTION CONTRACTS: KEY CLAUSES CONTRACT CLAUSES Scope of Work Liquidated Damages Quality Standards Change Orders Allowances Match Existing Insurance Substantial Completion & Punch Lists Warranties Dispute Resolution Hidden/Changed Condition s Contract Termination Time is of the Essence View all CONTRACT articles New Model Construction Contract Most change orders modify the work required by contract documents (which, in turn, usually increases the contract price) or adjust the amount of time the contractor has to complete the work, or both. The inspection clause for ____________contracts allows for the contractor to charge the cost of rework to the government. Items to consider during the development of the IGE include: (select all that apply), 1. Inspections must be reasonable in scope when no specific inspection requirements are set forth. Kr pI^B\m ;y0M%.;`[\Q|n(m4`zp0uW%:an~b&sZ6E630:PMLd~:p1m`v*:PbiTsa*H8_u.JVw zx*5EOt&"J(DV? ^E`M3Y)8nE zy;AKtM Jug6fgvxg0hEMa. This article will discuss: (1) the basic definition of a change order, (2) changes in the work clauses and the legal basis for change orders, and (3) a few pointers for handling change order disputes. After discovering that the contractors work had not been properly performed, the surety sued the city for payments made to the contractor, which the surety contended could have been withheld and available to the surety if the defective work had been discovered through the citys inspection. Inspections are the primary vehicle employed by an owner during the course of construction to ensure that appropriate quality standards are being met. The inspection clause for _______________contracts allows for the contracting officer to charge not only the cost of rework to the contractor but also any additional costs associated with re-inspection. The Contractor shall maintain complete inspection records and make them available to the Government. (e) The Contractor shall promptly furnish, at no increase in contract price, all facilities, labor, and material reasonably needed for performing such safe and convenient inspections and tests as may be required by the Contracting Officer. The standard federal inspection clause for construction contracts, FAR 52.24612(e), includes this as an express obligation where it states: [T]he Government shall perform all inspection and tests in a manner that will not unnecessarily delay the work.. (f) The Contractor shall, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government consents to accept the work with an appropriate adjustment in contract price. If so, which one? Post it here. 8.5.1 The Contractor shall provide sufficient, safe, and proper facilities, including equipment, as necessary for safe access at all reasonable times for observation and/or inspection of the Work by the Owner and its agents. Cost reimbursement contracts are used when there is uncertainty in the outcome of the effort; the greatest risk is placed on the Government. The next time you're you are litigating a change order dispute, keep these tips in mind: The change order is a fundamental concept in the construction industry. Construction, ASBCA No. 6218, 97-2 B.C.A. 52.246-3 Inspection of Supplies-Cost-Reimbursement. Additionally, contractors generally cannot rely on inspection provisions allowing owners to perform inspections to relieve the contractor of its duty to perform its work properly if the owners inspection fails to detect deficiencies in the contractors work.62. If deficiencies do exist, and the owner or its representative reasonably objects, performance can be modified to make the work acceptable with minimal cost. PROCUREMENT LOBBYING. 52.204-26 Covered Telecommunications Equipment or Services-Representation. Construction Management (During Construction) 1 Conduct Meetings with the HCDD1 PM & Contractor Throughout Construction Duration for Adherence to the Schedule (as. 10 days before inspection, give written notice to each party This is the fifth and final article in a series of articles providing a brief overlook of managing a construction contract. If the specified test can be viewed as establishing a standard of performance, however, a different test increasing the level of performance cannot be substituted without a change to the contract price.34, Not only does the government have the right to inspect at all places and times; the government also has the right to reinspect the same performance. The Contractor shall promptly segregate and remove rejected material from the premises. endstream endobj startxref The Government shall perform all inspections and tests in a manner that will not unnecessarily delay the work. 970.5204-3 Access to and ownership of records. The contractor demanded an equitable adjustment for its costs in removing and replacing the brick. The Contracting Officer's Representative must read and understand the contract, including any attachments and modifications to the contract. This chapter focuses on the third prong of the cost/schedule/quality triumvirate by discussing issues that relate to construction quality: (1) inspections, (2) acceptance, (3) warranties, and (4) commissioning. Inspection During Construction. In one case, the governments specifications for brick were strict, and the contractors chief mason complied with the requirements by rejecting between 20 and 25 percent of the brick. The government's policy is for contractors to provide all of their own general purpose equipment. The first article covered the basis and overview for this series of articles. The COR should work with the Contracting Officer if the COR identifies a need to change the current contract. If the contractor delivers a non-conforming item or service, the __________ may accept the deliverable. 552.238-95 Separate Charge for Performance Oriented Packaging (POP). Should I Acclimate Hardwood Flooring & Leave Expansion Gap? The cost of reinspection generally is assigned to the party whose action or inaction resulted in the reinspection.25 If, for example, the contractors work was not sufficiently complete at the time of the original inspection, the contractor should pay the costs of reinspection. Examples of standard clauses used in many private construction contracts are found in: ConsensusDocs 200 Standard Agreement and General Conditions Between Owner and Constructor ( 2011, Revised 2014) [hereinafter ConsensusDocs 200], Section 3.7, Tests and Inspections; AIA A201, Article 12, Uncovering and Correction of Work; and Engineers Joint Contract Documents Committee C-700, Standard General Conditions of the Construction Contract (2013 ed.) As a new practitioner, having a good handle on change orders is important; its the rare case indeed where the parties wont have at least one disputed change order. Once the Government Representative has executed final acceptance of any supplies or services there is no legal recourse for the Government for non-conforming items. In fact, indemnification clauses are a major player in the ever-waging war over managing risk. 52.213-4 Terms and ConditionsSimplified Acquisitions (Other Than Commercial Products and Commercial Services. Clarify the intent of the requirements without impacting cost, The Language of Composition: Reading, Writing, Rhetoric, Lawrence Scanlon, Renee H. Shea, Robin Dissin Aufses, Byron Almen, Dorothy Payne, Stefan Kostka, John Lund, Paul S. Vickery, P. Scott Corbett, Todd Pfannestiel, Volker Janssen, Eric Hinderaker, James A. Henretta, Rebecca Edwards, Robert O. Self. The COR's role in evaluating and awarding a contract include IPT member, SSEB technical evaluator, and Technical Expert or Representative. If a dispute rolls around, they'll be glad they did. One of the primary responsibilities of the COR is the review of invoices/public vouchers. 'Pay-when-paid' or 'pay-if-paid'. Bateson Co., Inc., VABCA Nos. An owner should employ inspection and acceptance procedures that will identify and appropriately address detectable defects in the work and before they are covered up. Most construction contracts state that the owners acceptance of the work and payment for the work do not preclude the owner from later objecting to defective work. The scope of the owners inspection rights often leads to disputes regarding the interpretation of specifications, quality of workmanship, and other quality determinations. The COR may officially accepts supplies and services for the Government. The clause FAR 52.232-5, Payments Under Fixed-Price Construction Contracts, is implemented as follows: (a) Retainage. Work includes, but is not limited to, materials, workmanship, and manufacture and fabrication of components. The owners right to inspect and accept the contractors work before payment can be a valuable tool if used properly. The Government shall perform all inspections and tests in a manner that will not unnecessarily delay the work. Schedule the inspection by P.E. Paragraph 14.04 of EJCDC C-700 allows the owner to accept defective work, but if the owner so chooses, the contractor is still responsible for: all claims, costs, losses, and damages attributable to Owners evaluation of and determination to accept such defective Workand for the diminished value of the Work to the extent not otherwise paid by Contractor pursuant to this sentence. To help avoid a future disagreement, the contract . )the contractor also gives a warranty that its work is performed in a workmanlike manner and that all materials are new and conform to the contract requirements. It is essential that a thorough, written contract that governs the work and outlines the rights and duties of all parties involved be established before any work is started. FAR Clause 52.246-12 Inspection of Construction is the foundation and basis for all contract requirements dealing with quality control and quality assurance. Paragraph 14.04 of EJCDC C-700 allows the owner to accept defective work, but if the owner so chooses, the contractor is still responsible for: After inspection, an owner has the right to accept the performance, reject the performance if it is nonconforming, require correction of nonconforming performance, or, in appropriate circumstances, terminate the contract for default. Since the general contractor did not undertake responsibility for implementing safety measures, the employee of the independent contractor recovered nothing from the general contractor.21, Although the owner may bear its own inspection costs, the contractor generally is required to bear the expense of providing the inspector with the facilities, labor, or material reasonably necessary to perform the test or inspection.22 Circumstances may exist, however, that would entitle the contractor to be reimbursed for expenses incurred for inspection or testing. Inspection schedules will be available after 9:00 a.m. For two singular antecedents joined by and, the pronoun is plural. 2022 BuildingAdvisor.com;All rights reserved. In another case, a design professional was held liable to an owner and the contractors surety for negligently inspecting a roof. Change orders are not the only way for the owner to change the work. The standard clause used in federal government construction contracting, entitled Inspection of Construction, is set forth in Federal Acquisition Regulation (FAR) 52.24612. Problem discovered Hire independent, third-party, P.E. The Contract Clause provides that no state may pass a "Law impairing the Obligation of Contracts," and a "law" in this context may be a statute, constitutional provision, 1 municipal ordinance, 2 or administrative regulation having the force and operation of a statute. (CCH) 29172, White Collar Defense & Internal Investigations. What the contractor can't do, unfortunately, is refuse to perform the work. Owners and contractors can never seem to agree on whether something is a change (which costs more money) or part of the original contract scope (and included in the original price). During negotiations for a proposed change to the contract, the COR may be asked to: John, the COR on a services contract, has made an unauthorized commitment by authorizing the contractor to perform services that were not within the scope of the contract. The purpose of evaluation factors is to represent the key areas of importance and emphasis to be considered in the source selection decision. Travel costs to specific travel identified in the contract using Joint Travel Regulation Rates.