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    1. Who has the signature authority to determine if a construction project has little or no design? 2. Is there some kind of litmus test to determine whether design is needed? 3. If there is little design required, can that design be done in-house? JBER has a few registered professional engineers. 4. Is a Statement of Work considered the equivalent of design and specifications? 5. What does a non-complex performance oriented task requiring minimal design contract for construction have to include? 6. Can JBER cancel the next MACC installation contract for the installation of the GRAB 300?


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    AAP 131310 - FAR QU MACC
    Question:
    1. Who has the signature authority to determine if a construction project has little or no design?
    2. Is there some kind of “litmus” test to determine whether design is needed?
    3. If there is “little” design required, can that design be done in-house? JBER has a few registered professional engineers.
    4. Is a “Statement of Work” considered the equivalent of design and specifications?
    5. What does “a non-complex performance oriented task requiring minimal design” contract for construction have to include?
    6. Can JBER (Joint Base Elmendorf Richardson) cancel the next MACC installation contract for the installation of the GRAB 300?
    Question Background: I believe MACC contracts may be one of three types according to IG5336.9201, chapter 4.7.2.
    The first is a project that is a noncomplex performance oriented task requiring minimal design.
    The second, complex design build.
    And third construction based on fully developed design.
    JBER has construction projects written as performance contracts as if there is no complex design involved. A contract went out to install a GRAB 300 system (Final Denial Barrier at entry control points) written with a Statement of Work, the manufacturers installation details and a sketch of the location. The manufacturer of the GRAB 300 in their product installation details requires insulation and approved cold weather concrete. While that note was in the contract, no design of insulation or appropriate fill below the concrete, or concrete type was specified in the contract. Drainage around this system, which is in part a heated concrete slab, was also neglected. The installation is complete, in use and there are no disputes.
    JBER has 4 more GRAB 300 systems to install. One of those has been awarded, and similar to the first contract, it will be built through the MACC process. I believe the requirement of the manufacturer requires some complex design for the concrete slab portion of the installation which would have been appropriately contracted as either a design/build or construction with a fully developed design. The next contract cannot begin until the spring thaw.
    The first GRAB installation was completed at a cost of $800,000.00. I have several questions regarding MACC implementation and modification or cancellation of the next contract. I have been told that for the next contract, our only ability to correct the omissions is to write an amendment (modification) and pay for the associated costs.
    JBER has some maintenance and functional issues with the GRAB system that is already installed. I believe that the design omission may invalidate our warranty. The System is not protected from the freeze-thaw cycles as required by the Manufacturer. And the discovery that maintenance of the GRAB is greater than expected (Snow and ice are accumulating adjacent to the heated slab, effectively creating large “speed bumps” for vehicles. These bumps are slick and problematic.)
    Places us in a position to cancel this next installation for the convenience of the Government. I do not know whether the clause for contract termination was included in the awarded project. I also question whether a “Statement of Work”, which I only find defined in the FAR within the definition of a Performance Contract, is valid for a construction contract. According to IG IG5336.9201, chapter 4.7.2. Construction projects require full design or must be bid as design/build with the design percentage required spelled out in the contract. This system relies upon the transfer of energy from a stanchion, as part of the GRAB 300 system, to a very complex atypical rebar cage within the concrete pad. As the installation occurred without the required insulation, as written on the manufacturer’s installation instructions, I have reason to doubt whether this complex rebar configuration is correct. A failure could result in a terrorist breach with a heavy vehicle, although far more likely, a failure could result in more harm than intended to a vehicle occupant or employee that accidently deploys the system. I am concerned about the implications for maintenance, as the pad will shift with the freeze-thaw cycle in addition to the new found problems with ice accumulation. I am also very concerned about the liability of our commanders, should these systems fail and result in a fatality with accidental deployment.
    RESPONSE:
    Two issues to note before addressing your direct questions:
     First of all the IG IG5336.9201, chapter 4.7.2. you are referencing http://farsite.hill.af.mil/archive/affars/2011-0714/IG5336.9201-ch4.htm  this site is archived and not currently part of the AFFARS.
    It appears in your requirements for your Task Orders you are sole sourcing your ANTI-RAM VEHICLE BARRIER by specifying the contractors use the “GRAB 300.” Note if required you can do this as long as you have followed the documentation and publication requirements of FAR 6.302-1(c) – see below, FAR 6.303, FAR 6.304 and FAR part 5.
    FAR 6.302-1(c)
    Application for brand name descriptions.
    (1) An acquisition or portion of an acquisition that uses a brand-name description or other purchase description to specify a particular brand-name, product, or feature of a product, peculiar to one manufacturer—
    (i) Does not provide for full and open competition, regardless of the number of sources solicited; and
    (ii) Shall be justified and approved in accordance with FAR 6.303 and 6.304.
    As to your 6 questions:
    1. Who has the signature authority to determine if a construction project has little or no design?
    There is no stated “signature authority.”  However, the requirement is generally developed by the requiring activity.  Many construction designs require a licensed engineer/architect.  This can be accomplished with either in house resources or through contracted resources.
    The actual language of the specification can be written in three different ways.
    In accordance with FAR 11.002, the specifications shall specify needs using market research in a manner to only include restrictive provisions or conditions to the extent necessary to satisfy the needs of the agency or as authorized by law and be designed to promote full and open competition.
    Design: Specifies precise measurements, tolerances, materials, in-process and finished product tests, quality control, and inspection requirements.
    Functional:  States only the end result to be achieved
    Performance: Describes desired operational characteristics. Measurements and other specific details are neither stated nor considered important, so long as the contractor accepts the responsibility for design, engineering, and achievement of the performance requirements, and exercises judgment or discretion.
    In the construction environment, one important issue involves compatibility between the specification type and contract type. 
    For example, if a firm-fixed price contract is contemplated utilizing Design-Build procedures, then the specification type should contain at least partial performance oriented specifications.  Performance oriented specifications would be required since the design would not be detailed; however, most specifications will be a combination of at least two of the specification types.
    By the complex nature of some construction projects, technical packages could contain all three ways of describing needs.  Remember:  construction projects comprise needs for precise measurements and tolerances (building walls, bridges); for stating the end result needed (build a dental clinic); and for the operational characteristics of a system (boilers, HVAC).
    Personnel, when reviewing plans and specs, should recognize that each different way of describing the requirement may be present.
    2. Is there some kind of “litmus” test to determine whether design is needed?
    The “litmus test” is whether you have a sufficient scope of work to provide to the contractors that they can provide a realistic estimate of cost on their proposal and it is defined clear enough that the contractor knows what he needs to build.  For example…if it was a design/build, this would rely more heavily on performance based specifications providing the contractor with creative license.
    3. If there is “little” design required, can that design be done in-house? JBER has a few registered professional engineers.
    The requirement is generally developed by the requiring activity.  Many construction designs require a licensed engineer/architect.  This can be accomplished with either in house resources or through contracted resources.  This will be dictated be expertise available, current workload and time restraints to complete the design.  There is nothing that precludes you from deciding to do an in-house design.
    4. Is a “Statement of Work” considered the equivalent of design and specifications?
    Yes and Maybe:  Statement of Work (SOW) is a generic term that is not defined in the FAR or DFAR.  The business dictionary states, “Detailed description of the specific services or tasks a contractor is required to perform under a contract. SOW is usually incorporated in a contract, indirectly by reference or directly as an attachment.”
    A SOW could be a full and complete design with plans and specifications, but it could also be a Performance Work Statement that describes the results with measurable outcomes. Below are some FAR definitions that might help.
    FAR 2.101
    “Statement of Objectives (SOO)” means a Government-prepared document incorporated into the solicitation that states the overall performance objectives. It is used in solicitations when the Government intends to provide the maximum flexibility to each offeror to propose an innovative approach. (This is in a solicitation. Based on this, a contractor proposes his PWS and is evaluated based on what he proposes.)
    “Performance Work Statement (PWS)” means a statement of work for performance-based acquisitions that describes the required results in clear, specific and objective terms with measurable outcomes.
    FAR 36.102
    “Design” means defining the construction requirement (including the functional relationships and technical systems to be used, such as architectural, environmental, structural, electrical, mechanical, and fire protection), producing the technical specifications and drawings, and preparing the construction cost estimate.
    5. What does “a non-complex performance oriented task requiring minimal design” contract for construction have to include?
    This would be different for each requirement and there is not exact cookbook.  However, the definition and the description below should provide you a good frame of reference for what you need.
    FAR 2,101“Performance Work Statement (PWS)” means a statement of work for performance-based acquisitions that describes the required results in clear, specific and objective terms with measurable outcomes.
    Performance Specifications: Describes desired operational characteristics. Measurements and other specific details are neither stated nor considered important, so long as the contractor accepts the responsibility for design, engineering, and achievement of the performance requirements, and exercises judgment or discretion.
    6. Can JBER (Joint Base Elmendorf Richardson) cancel the next MACC installation contract for the installation of the GRAB 300?
    You state in your background, “I do not know whether the clause for contract termination was included in the awarded project.”  This is to assume you mean the Task Order (TO).  Generally the Termination for Convenience and Default clauses would reside in the MACC contract and would be applicable to all Task Orders.  Only clauses that are applicable to a specific TO would be added to the TO.  As to whether you can terminate the TO, and I would assume that it would be a Termination for Convenience, FAR 52.249-2, ALT 1,  the Contracting Office would have to determine that it was in the best interest of the government and then the government would be liable for the cost stated in the clause. You would need to weigh this with modifying the TO to bring the requirement up to standards.

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