Federal Construction Contracting Lawyer & Attorney : Payne Hackenbracht & Sullivan : Construction Law, Dredging and Claims

Engineering News Record has posted an interesting podcast of a conversation with the recently appointed Chief of the U.S. Army Corps of Engineers, Lt. General Robert S. Van Antwerp.  The General responds to questions about the on-going construction efforts in Iraq, and the completion of the flood protection systems in New Orleans.  The recorded conversation (podcast) may be heard by clicking the link on the ENR website at:

http://enr.construction.com//people/multimedia/podcasts/2007/070710.asp

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As part of the President's Management Agenda for Electronic Government, the Small Business Administration (SBA), the Integrated Acquisition Environment (IAE), and a number of Agency partners collaborated to develop the next generation of tools to collect subcontracting accomplishments. This government-wide tool is known as the eSRS. This Internet-based tool will streamline the process of reporting on subcontracting plans and provide agencies with access to analytical data on subcontracting performance. Specifically, the eSRS eliminates the need for paper submissions and processing of the SF 294's, Individual Subcontracting Reports, and SF 295's, Summary Subcontracting Reports, and replaces the paper with an easy-to-use electronic process to collect the data. With the first generation of eSRS, contractors and their business associates will report data through their web browser of choice, visiting this site and logging on to report accomplishments using an easy data entry process. However, future plans for the full operational capability state already include the development of a back-office interface for those businesses collecting accomplishments electronically.

Ultimately, with the eSRS launch the Government will be making big strides in providing an easier process for Federal contractors and their business associates to report subcontracting activity.

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We have recently presented a series of very well-received and  well attended seminars on “The New World of Federal Government Construction Contracting."  It is evident from the questions raised by many of the attendees that contractors are concerned about the decline in contracting opportunities as the federal government shifts from sealed bidding to the extensive use of negotiated procurements. The last in this series of seminars will be held in New Orleans on February 27, 2007, and a large number of contractors have already registered.  The tremendous amount of work resulting from the disastrous effects of Hurricane Katrina has forced the Corps of Engineers to be more creative in its contracting methods.  The seminar will address the growing use of negotiated IDIQ and MATOC contracting, the need to develop teaming arrangements, and the need prepare effective proposals in response to government solicitations (RFPs)..

If you are interested in attending the New Orleans seminar, please refer to the attached agenda and registration form 

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In an a press release issued by Construction News, a publication of the Associated General Contractors of America (AGC), it was reported that the U.S. Environmental Protection Agency (EPA) and the AGC had both filed an appeal with the U.S. Court of Appeals for the Ninth Circuit to contest a recent California district court ruling that requires the EPA to issue an “effluent limitation guideline” (ELG) for the “Construction and Development” (C&D) industry.

Such an ELG would set uniform, nationwide limits on the sediment that stormwater can lawfully discharge from construction sites. After years of analysis and outreach, EPA concluded that additional rules are unnecessary, given the evolution of the existing stormwater program.

“EPA recognizes that there is no ‘one-size-fits-all’ approach to stormwater runoff,” said AGC CEO Stephen E. Sandherr. “The better way to protect the environment is to allow state and local authorities to tailor the details of their construction runoff programs to state and local conditions, and not to impose a rigid and inflexible federal standard.”

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There are many resources available to federal construction contractors, but there a few as useful as the services provided by Paul Perkins and his company, Construction Contract Specialists.  We have had the privilege of working with Paul on a number of construction cases, and we continue to be impressed by his tireless efforts on behalf of his clients, and his extensive knowledge of construction contracting.  All too often, construction contractors do not have the time, or the manpower, to properly respond to a letter from the government, or to develop and document a construction claim.  That is where Paul comes in – he never fails to get the job done in a timely and competent manner.  He is willing to immerse himself and do the hard work that needs to done when it comes to developing and documenting the facts relating to a construction issue.

Paul worked in various management and supervisory positions with the U. S. Army Corps of Engineers for more than twenty-five years before he founded Construction Contract Specialists, Inc. in 1995.  He organized the company for “for the express purpose of providing reliable and highly qualified cradle-to-grave type assistance to small and medium sized contractors at an affordable price in their quest to level the playing field and, at the end of the day, end up with a successful and profitable project and an above average or even outstanding overall performance evaluation.”   Since Paul has served as both an Administrative Contracting Officer and an Authorized Representative of the Contracting Officer, it is his first-hand knowledge of how the government does business that makes him such a valuable resource to federal construction contractors.  He literally understands what is happening on both sides of the fence.

Construction Contract Specialists publishes a very informative and free newsletter, the Federal Construction Project Manager’s Bulletin, that is packed with useful information and practical insights for construction contractors.  It is easy to subscribe and we highly recommend that contractors take advantage of this free offer by signing up a CCSI’s website.  The latest issue, dealing with the “Enforceability of Contracts,” is attached.

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The January 3, 2007 edition of ENR.com, an online publication of McGraw-Hill Construction, contains a webcast of the construction industry "matchmaking" session that the Bureau of Overseas Buildings Operations (OBO) of the Department of State held with representatives of over 900 companies on October 10, 2006 in Arlington, Virginia. The webcast provides contractors with important information on the dramatically increased embassy design and construction program of the Department of State. Contractors need to know that the State Department employs the design-build negotiated procurement process found in Section 36 of the FAR in almost all of OBO's capital program.

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The Baltimore District, in conjunction with the Society of American Military Engineers, is conducting a one-day forum on the workload created by the Base Realignment and Closure (BRAC) construction program in the District.  This multi-billion dollar program includes new construction and renovation work.  The forum will be held on December 7, 2006 in Hunt Valley, Maryland.  Information and registration forms may be obtained at http://www.nab.usace.army.mil/BRAC/.

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The Office of Federal Contract Compliance Programs (OFCCP) has published a Technical Assistance Guide designed to help federal government construction contractors and subcontractors comply with the federal laws and regulations that prohibit government contractors from discriminating in employment, and require that they undertake affirmative action to ensure equal employment opportunity in their workforces.  It is intended for government contractors who have construction contracts and/or subcontracts.  The obligations of government contractors and subcontractors who hold non-construction contracts differ in significant ways and are covered in a separate guide.

This Guide does not create new legal requirements or change current legal requirements. Instead, it reflects the views of OFCCP and is intended to serve as a basic resource document on OFCCP-administered laws. The legal requirements related to equal employment opportunity that apply to Federal supply and service contractors are contained in the statutes, executive orders, and regulations cited in the Guide. Every effort has been made to insure that the information contained in the Guide is accurate and up to date.

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When the individual Corps of Engineers’ Districts used the Tri-Service Solicitation Network to provide access to electronic documents, not only were the solicitations, specifications, plans, and amendments available, other useful information that was also included.  However, with the deactivation of the Tri-Service Network and the Federal Government's adoption of the Federal Technical Data Solutions (FedTeDS) centralized procurement information system, it has become difficult for contractors to find useful, such as lists of planholders or the results of bid openings on Corps of Engineers’ solicitations.  Fortunately, Some Districts have begun to provide bid abstracts on their websites. (See the Baltimore District for an example).  Hopefully, more districts will adopt this practice so that this vital information will be available for contractors to review.

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Strangely, the Department of Homeland Security's Supplemental Federal Acquisition Regulations (HSAR) is not included on the official Code of Federal Regulations website. However, an unofficial online beta test site, the Electronic Code of Federal Regulations (e-CFR), does include the HSAR.  This beta test site is updated daily and also contains the Federal Acquisition Regulation, FAR, as well as the individual agency supplements.  By accessing Title 48 of the CFR on this website, the most recent versions of these regulations were accessible.

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The purpose of this blog is to give the construction industry the benefit of our insights about the latest developments in federal construction contracting. We closely monitor the decisions of the courts and the administrative boards of contract appeals and we will explain the practical meaning of those decisions in terms that will make sense to a contractor.  If there are changes in procurement policy, or agency guidance, we will keep contractors informed.  Most importantly, we will endeavor to keep the industry advised of new contracting opportunities, and we will pass along practical advice about how contractors can protect their rights and maximize their profits on federal government contracts.

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