PPI Responses 9.pdf

PPI Gov’t Tracking

Government Response

PPIs 005, 0018, and 0023 all addressed the use of exclusive subcontractors to assist in meeting the requirements of Technical Factor 1. While the Government has responded to these PPIs, the exact requirement for the legal relationships between these parties remains unclear, particularly in regards to “partnerships.” Defining this relationship is critical to determining whether a prime contractor’s proposal will be considered Technically Acceptable. Please advise if the Government will interpret “partnership” as a “Contractor team arrangement,” defined in 48 CFR 9.601 (2) as, “A potential prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified Government contract or acquisition program.”

186 The Government interprets Contractor Team Arrangements as defined in FAR

9.601 Definition. - “Contractor team

arrangement,” as used in this subpart, means an arrangement in which—

(1) Two or more companies form a partnership or joint venture to act as a potential prime contractor; or

(2) A potential prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified Government contract or acquisition program.

On safety form for Factor 2, item #4 Insurance Carrier Information. Please confirm if this is the company’s injury insurance company and contact information you are requesting?

If not, please clarify which insurance carrier information is required for this item.

187 The company awarded the contract shall provide required insurance in accordance with the insurance instructions in the solicitation.

After reviewing the Contract Specifications and Drawings, we noticed that the seismic values listed on

Contract Drawing S-001 are more than double the mapped seismic acceleration values from the building code (as can be seen below in the two screen shots.) Is the intent of the

Client to have the tanks designed to the seismic values listed in Contract Drawing S-001 or per the building code? The steel plate thicknesses will increase greatly if the seismic values listed on Contract Drawing S-001 are used.

188 Reference Drawing S-001. Provide bid based on seismic parameters shown on Drawing S-001. Site Specific Analysis was completed for the project.

Reference Geotechnical Report Section 7.1.4

Section 02 65 00, Page 13 subsection 3.8.2 Tanks states "use only non-sparking type materials or equipment which comes into contact with the tank, or in the vicinity of the excavation such as shovels, slings and tools”. This language suggests the use of hydraulic pulverizers, rock crushers, hydraulic hammers and/or combi-cutters is prohibited during tank demolition; post cleaning, purging and inerting of the tanks. Clarify the purpose and intent of said language from Section 02 65 00 Page 13 subsection 3.8.2.

189 Reference Specification Section 02 65

00. Non-sparking equipment should not be necessary following tank cleaning as long as the Marine Chemist deems the workspace is safe.

After reviewing the Contract Specifications and Drawings, we noticed that the seismic values listed on Contract Drawing S-001 are more than double the mapped seismic acceleration values from the building code (as can be seen below in the two screen shots.) Is the intent of the Client to have the tanks designed to the seismic values listed in Contract Drawing S-001 or per the building code? The steel plate thicknesses will increase greatly if the seismic values listed on Contract Drawing S-001 are used.

190 Reference Drawing S-001. Provide bid based on seismic parameters shown on Drawing S-001. Site Specific Analysis was completed for the project.

Reference Geotechnical Report Section 7.1.4

The Contract Documents appear silent on Builder's All- Risk Policy. Please confirm that the Owner intends to and shall carry a Builder's All Risk policy in the face amount of the Project until the Project achieves Substantial Completion or until the Owner takes Beneficial Occupancy, whichever is earlier, or, that the Owner will reimburse Contractor for the cost of such Builder's All- Risk policy if carried by the Contractor in the absence of an Owner policy, or, explain what is intended.

191 It is the responsibility and expense of the contractor to provide and maintain insurance the entire period of performance. See FAR 52.228-5 Insurance - Work on a Government Installation and FAR 52.236-7 Permits and Responsibilities

The Contract Documents appear unclear on the amount of time for Owner review of a Proposed Change Order.

Please confirm that any Proposed Change Order (PCO) delivered by Contractor to Owner shall receive approval or be returned with written comment within fourteen (14) calendar days, or thereafter be considered null and void without further action by either party, unless extended in a signed writing by Contractor before 6:00 PM local time at the Owner's place of business on the 14th day after the date that such PCO was delivered by Contractor to Owner, or identify any other period Owner intends.

192 Approval of contractor proposed changes must be evaluated and the time duration of approval is on a case-by-case basis.

The Contract Documents are silent on novel corona virus 2019 (COVID-19) impact costs. Please clarify if Owner will negotiate those impacts in the form of a change order for time and cost impacts, or provide guidance on how Offeror should price those impacts and include them in it offer.

193 It is the responsibility of the Contractor to determine cost impacts in their offer due to COVID-19. The Government includes remedy for unforeseeable causes beyond the control or without fault or negligence of the contractor.

See FAR clauses: 52.249-10 Default (Fixed Price Construction), and provisions that may apply under the CARES Act.

The Contract Documents do not reflect a mutual waiver of consequential damages. Please confirm that each Party waives against the other Party any claim for consequential, special, exemplary, or punitive damages, and, waives any claim for lost profits with respect to the Contract.

194 We typically do not seek consequential or other damages. However, under the Termination for Default Clause, we do reserve the right to seek damages for the cost of replacing the contractor should it default.

Please confirm that Liquidated Damages ("LDs") are the Owner's sole and exclusive remedy with respect to a late substantial completion, and that each Party accepts that LDs are considered to be direct damages, or explain what is intended. Please confirm that Liquidated Damages ("LDs") will not accrue beyond substantial completion of the work, or explain what is intended.

195 The Liquidated Damages clause requires payment for each calendar day of delay until the work is completed or accepted. It is the remedy for late completion of the contract. See also FAR 52.232-5 (e) Retainage - Payments Under Fixed-Price Construction Contracts.

The Contract Documents do not preclude damages other than direct damages or liquidated damages. Other damages could include indirect, consequential or punitive damages.

Please strike all indirect, consequential or punitive damages that may be demanded by either Party against the other or explain why such additional damages are recoverable.

196 We typically do not seek consequential or other damages. However, under the Termination for Default Clause, we do reserve the right to seek damages for the cost of replacing the contractor should it default.

FAR 52.249-10(a) provides that the Government can take possession of materials, appliances, and plant on site following termination of Contractor for default. Taking over Contractor’s owned equipment is an extraordinary measure that violates a Bidder’s corporate policy as well as existing covenants. Please confirm that under no circumstances shall Owner take possession of, or exercise control over, Contractor’s tools, construction equipment or machinery, or explain what is intended.

197 The Government is required to follow the regulations set out in the FAR.

FAR 52.227-2(b) states that in the event of a claim or suit alleging patent or copyright infringement, the Contractor shall furnish “all evidence and information in the Contractor’s possession pertaining to such claim or suit.” Furnishing evidence and information may waive an applicable privilege, if any, or be detrimental to the Contractor’s defense of a claim or suit. Please confirm that Contractor shall only be required to furnish public evidence and information and not that which is subject to a

198 The Government is required to follow the regulations set out in the FAR.

statutory or common law privilege, or explain what is intended.

The Contract Documents appear unclear on the timing and distribution of any required notice from the Contractor. To whom should the Contractor provide notice of a material nature or with respect to potential claims, by what means may Contractor provide such notice, and what is the desired timing for such notice?

199 As soon as possible to the Contracting Officer and the Contracting Officer Representative (COR).

The Contract Documents appear unclear on the order of precedence among the various Contract Documents.

Please clarify the Order of Precedence among the various Contract Documents and please provide a complete electronic set of all such documents with reasonable time for review prior to bid submission, acknowledging that Offeror is not bound to any requirement not included in the Contract Documents provided for use in bidding, except as required by law or code.

200 See Amendment 0009 adding FAR clause 52.215-8 Order of Precedence – Uniform Contract Format

The Contract Documents appear unclear on Punchlist.

Please confirm that the Parties shall jointly inspect the work in a single inspection including all necessary personnel to complete that inspection, and that the result of such inspection shall form the basis of the Project Punchlist as relates to Substantial Completion of the Work, or explain what is intended.

201 Yes.

The Contract Documents appear unclear on the format for a Contractor Request for Equitable Adjustment ("REA") of Contract Price and Contract Time. Please confirm that after timely notice, and once the issue giving rise to such request is finally resolved, Contractor shall assemble and present to Owner any such REA including contract basis/merit, quantum, an appropriate time impact analysis for Contract Time extension and associated back-up for Owner/Client review, or explain what is intended.

202 DFARS 252.243-7002 provides guidance on the content of REA’s.

The Contract Documents appear unclear on submittal review. Please confirm that the Client/Owner will promptly and timely review and respond to submittals, and that in no case should a submittal review and response take longer than ten (10) work days from the time of receipt of same by Client/Owner/Engineer/Architect from Contractor, or explain what is intended.

203 The government will not commit to a particular time frame unless it is included in the contract.

The Contract Documents are unclear on acceleration.

Please confirm that while Contractor shall be responsible for recovery of any project critical path delay caused solely by Contractor, any other directed acceleration or constructive acceleration of the Substantial Completion date shall be compensable to the extent that it requires

Contractor to add resources, stack trades or incur additional costs to achieve such early completion.

204 The Changes Clause (FAR 52.243-1) addresses acceleration. See also FAR 52.236-15 Schedules for Construction Contracts.