Federal Construction Contracting Blog : Federal Construction Contracting Law Firm : Cohen Seglias Pallas Greenhall & Furman PC : Construction Law, Dredging and Claims

In an earlier blog we discussed what the ARRA meant for Federal Construction Contractors, and noted that the reporting would be over the internet, once the government had its website up and running.

On Monday, August 17, 2009, recipients of economic stimulus funds were notified that they now can access the website www.federalreporting.gov and register. Registration is necessary before the site will permit recipients to file reports, which begins on October 1, 2009. In addition to completing the registration process on the website, recipients also must obtain a Federal Reporting Personal Identification Number (FRPIN). Instructions on how to obtain a FRPIN can be found at http://www.recovery.gov/?q=content/recipient-reporting. The Government has published a 32 page guide to assist recipients in the registration process.

The government has indicated that anyone interested in reviewing the reports filed by recipients of Stimulus funding will be able to do so beginning on October 11, 2009 at the website www.recovery.gov.

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By: Lane F. Kelman and Christopher Soper

As part of the American Recovery and Reinvestment Act of 2009 (the "Stimulus Act") the General Services Administration's ("GSA") Public Building Service was authorized to invest 4.5 billion dollars to transform federal facilities into exemplary, high-performance green buildings. The allocated money is scheduled to be awarded in its entirety within the next two (2) years. A list of proposed projects in all fifty states has already been submitted to Congress. These designated projects are intended to improve energy efficiency, conserve resources over the long-term, provide models of high-performance green design and reduce the government's reliance on costly operating leases.

While the government's attempt to transition to high-performance green buildings is a noble goal, it presents federal contractors with a unique set of challenges. Federal contractors interested in these green construction projects should be prepared to deal with factors that were not previously considered when putting together your proposal and project team. These factors are unique to green building and include potentially unfamiliar project specifications, rating systems, new materials and installation techniques. A resource that is readily available to federal contractors interested in performing green building is the Federal Green Construction Guide for Specifiers.

The Federal Green Construction Guide for Specifiers (the "Guide") was created to assist federal building project managers to meet the various legal requirements of green construction. The Guide provides sample specification language for federal green construction projects. It is an excellent tool for federal contractors to familiarize themselves with the specifications and performance requirements associated with green building. The Guide can be found at http://www.wbdg.org/design/greenspec.php.

Also keep in mind the new legal concerns that are associated with green building. The ability to recognize and address the risks inherent in a green building construction contract will minimize the potential for disputes and exposure. A checklist of some of the factors that you should review are as follows:

* Identify which party is responsible for documenting and achieving LEED certification.
* Identify the damages associated with failing to obtain the required LEED certification.
* Confirm that the insurance coverage on the project takes into account the green nature of the project.
* Check the warranty and guaranty language to ensure that new green construction procedures or installation materials do not void the warranty or guaranty for a product.
* Investigate the availability of green construction materials and the replacement price for such materials.
* Make sure the construction schedule accounts for time associated with LEED certification.
* This list is in no way exhaustive of the issues that should be addressed or may arise on a green construction project, but does provide an idea of the types of things to consider.

The Stimulus Act will add significant momentum to green building. As green building evolves, it is expected that what is perceived as a trend or niche will become standardized. Those contractors that position themselves now will have a competitive edge in the future.
 

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An Armed Services Board case, ADT Construction Group, Inc., involves an appeal from a contracting officer's final decision denying a claim for $826,725.16 and a 278-day time extension. The contractor had filed a claim for pre-construction delays arising out of a contract for the design and construction of a munitions maintenance facility at Nellis Air Force Base, Nevada. Although the contract in question was ultimately terminated for default and appealed to the Board (ASBCA No. 55358), the termination appeal was suspended pending the outcome of the appeal on the underlying delay claim. The Board obviously concluded that the merits of the underlying delay claim could have an effect on the merits of the termination for default.

Although the Board found that some of the delay was the fault and responsibility of the Government, we were particularly interested in the Board's conclusion about the contractor's right to pursue "fast track." After drafting the solicitation the government learned that the Department of Defense Explosives Safety Board ("DDESB") required 100% design of the entire project before it would review the plans. Thus, the drafters sought to modify the solicitation to remove all references to fast track as an option. The Board found that they "failed miserably at that task" and several references to fast track as an option remained in the solicitation when it was issued. ADT stated in its proposal that it would use the fast track method for design and construction.

The Board concluded that to the extent the contract was ambiguous in that regard, the contractor repeatedly gave notice when it said it wanted to do fast track and the government repeatedly ignored that notice. The evidence shows that the government never intended to allow fast track, and indeed its actions supported that intention, yet it failed to communicate those intentions to ADT. The government's utter silence when the contractor repeatedly raised the issue of fast track squarely put the burden on the government to respond during the design phase - and it did not. Therefore, the Board found that the contractor had a contract right to pursue fast track.

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