Termination for the Convenience of the Government
- $1.5 million Partial Termination Proposal
» A USACE Firm Fixed Price Contract in the Middle East was partially terminated for the convenience of the Government. Excell was hired to evaluate the costs recoverable under the partial termination, which removed approximately 40% of the project nearly 1 year into construction. Excell was able to allocate the costs expended by the Prime due to early-on delays, differing site conditions, change orders, and owner changes. Excell was instrumental in the development of a system that allowed the Prime Contractor, a Joint Venture with one partner based in the United States and the other based in Turkey, to collect, identify, and categorize the costs submitted by each of the companies, as well as ensure that there were not any duplicative costs submitted. Excell then assisted in the preparation of an REA for the increased costs associated with the completion of the construction project.
- $1.2 million Termination Proposal
» A USACE Firm Fixed Price Contract in the Middle East was completely terminated for the convenience of the Government. Excell was hired to evaluate and prepare a proposal that would recover the contractor’s costs as allowable under the FAR provisions. Excell was also tasked with when and where to apply a unique Afghanistan Tax that would affect the total cost on the prime contractor.
- $2.5 million Termination Proposal
» A Veteran Owned, Service Disabled, Small Business was awarded a Firm Fixed Price contract by USACE for a natural disaster clean up. The Contract was terminated by the Government due to FEMA time restrictions. Excell was retained by both the Prime Contractor as well as the Subcontractors to assist with the review, recovery, and preparation of the costs allowable in the proposal to be submitted to the Government. Excell was able to show the Prime Contractor a significant amount of recoverable costs, which had overlooked when estimating their termination proposal costs.
Bond and/or Insurance Claims
- $7.5 million claim request submitted to Zurich
» A Subcontractor was defaulted for cause on a construction project in Las Vegas, NV. Excell conducted a policy review then prepared the Subguard Claim for the client seeking recovery of $7.5 in losses and additional expenses as a result of the Subcontractor Default. Excell supported the Contractor during the life of the submission, to include 8 requests for additional information and clarification from the adjuster. Contractor was successful in receiving compensation from Zurich.
Bid & Proposal Review
- $1 billion plus proposal submitted to U.S. Army Rock Island Contracting Center
» Excell performed an extensive review and analysis of the proposal being submitted for the Kuwait Base Operations and Security Support Services Contract. Client received award of the contract by the U.S. Army Rock Island Contracting Center to provide comprehensive support services for all U.S. Army facilities in Kuwait. The award is worth an estimated $1.4 billion with all options exercised.
- Termination for Convenience Proposal(s) Audited by DCAA
» Excell worked as the point of contact for the DCAA auditor during their audit of our client’s USACE project Termination for Convenience Proposal. Excell worked closely with DCAA representative as well as the client to recover, organize, and present all additional data being requested by the DCAA auditors. Contractor was a Joint Venture with one party residing in the United States and the other Joint Venture party residing in Istanbul, Turkey. Project was performed in Afghanistan. Excell was responsible for the recovery and translation of all relevant documents. Excell often times had to supplement submittals to DCAA with an explanation and supporting documentation on the unique aspects associated with and required by foreign-based contractors, in addition to the foreign-based job site.
» Excell was hired to perform these services once again when the Contractor had a second Task Order Partially Terminated for the Convenience of the Government.
- Arbitration/Mediation Expert Witness
» Excell was hired to serve as an Expert Witness during a $2.5 million Arbitration/Mediation hearing for the USOC Headquarters. Excell was instrumental in supporting the Contractors claims of Delay and Disruption. Client was successful in receiving compensation.
- Litigation Expert Witness
» Excell was brought in as an Expert to evaluate the Prime Subcontractor interface on a $40 million Government National Guard Readiness facility being built under direction of USACE. A significant cost over-run occurred due to Maladministration. Client was successful and satisfactorily compensated. Excell’s involvement caused the one-year litigation matter to settle in less than 6 weeks to the satisfaction of the client.
» Excell is currently acting in a capacity as an Expert to assist a Prime Contractor in cost recovery on a potential defective design and a faulty installation issue. The matter is ongoing and the studies conducted to date are preliminary in nature. The project is estimated to be valued at $37 million.
- Over the course of the last two years Excell has handled various Bid Protests with an approximate 75% success rate.
Request for Equitable Adjustment (REA)
Excell has long been an industry leader in Contract Disputes, with innovative methods for analyzing, organizing and presenting REAs. Excell continues to successfully recover money that is due to our clients. Some recent highlights of our REA victories include:
$4.5 million dollar REA, Firm Fixed-Price Contract, Naval Facilities Engineering Command
- This REA included two wrongful Notices of Default being issued, Defective and Deficient Contract Documents, Maladministration of the Contract, Violation of the Contract Terms and Conditions, Lack of Partnering, and Out of Scope Work.
- Excell was enlisted to assist a sizeable subcontractor on a Firm Fixed-Price Government Contract to furnish and install all the hardware and software, perform the testing and balancing, and conduct training as specified. The subcontractor contacted Excell for help seven years AFTER the original contract completion date, i.e., seven years after the project should have been finished, the owner was still making cosmetic, and whimsical changes to a software program, which by this time had become a completely custom-created in the field software system. The owner would imagine a report or a system command that they wanted, liked, or would be handy, and the subcontractor was forced to custom code the software to meet the day’s lists of wants/demands. In fact, the project had steered so far off course that many of the people involved in the signing of the Basic Ordering Agreement from which this was issued under had retired or couldn’t even remember what the original contract was for. The Subcontractor had simply become a personal software-programing fixture, free of charge to the Government. This very extensive and detailed REA was prepared as a twofold approach. Excell custom designed extensive graphics that visually displayed the numerous violations and combined these with an interactive digital presentation; this digital presentation was a companion to the standard printed proposal submitted. The eleven-year contract anticipated to be three years or less, was successfully resolved within 120 days of Excell’s presentation and participation after filing the REA
$2.3 million REA, Firm Fixed-Price Contract, California University (satisfactorily settled)
- This REA included Defective and Deficient Contract Documents, Differing Site Conditions, Out of Scope Work, Unreasonable Specifications, Cardinal Change, Maladministration, Delay, Disruption, and Ripple Effect.
- A subcontractor was hired to assist in the building of a hospital in California. From the onset of construction it became apparent that there were serious issues with the issued RFP. In fact, by the time Excell was contacted to assist, over 8,000 RFIs had been issued including 5 years of delay, and millions of dollars in change orders had been submitted. What was currently being demanded from the owner no longer even resembled the project our client bid. Excell worked closely with all parties and other consultants to design a cohesive REA that represented all parties and could successfully be presented to the owner. The REA was amended due to further delays from the owner, and was ultimately resolved with all Contractors receiving fair and just compensation for the project.
$5.1 million REA, Firm Fixed-Price Contract, USACE
- Delay, Disruption, Ripple Effect, Critical Path Delay, Defective Specifications, Defective Contract Documents, Maladministration, lack of Partnering.
- Our client was selected by the Corps of Engineers to build aircraft hangers, runways, and an additional fire station on an existing Air Force Base. Ultimately the job was two years behind schedule and had an overrun of over $5 million. Excell was able to retrieve all relevant project data and create a global REA, with full supporting data, for our client to submit to USACE. After negotiations with the Contracting Officer, our Client was awarded 97% of the requested amount, without an audit.
$3.5 million REA, Firm Fixed-Price Contract, USACE
- REA included prescriptive vs. performance specifications, delay, disruption, ripple effect, critical path delay, and maladministration.
- Government directed our client to work, and client refused. Excell put together a position paper in support of the issues required to be addressed at the District level; Modification issued for $3.5 million. Client and USACE agreed to the position taken.
$1 million + REA, Firm Fixed-Price Contract, Department of Labor (satisfactorily settled)
- Several REAs were put together based upon Task Orders under a Master Contract, three of the four were settled and one is going forward to ASBCA. The settled matters satisfied the client’s requirements. One matter included CPARS evaluation issues and it was reversed without the need of ASBCA intervention.
- Another matter required a reversal of a finalized and delivered USAF Final Decision; Excell intervention caused the Final Decision to be withdrawn, and a REA is being negotiated at this time.
$1 million REA, Firm Fixed-Price Contract, USACE
- Prime contractor responsible for Maladministration of the contract, Subcontractor engaged Excell to assist in resolving year-old litigation. Excell discovered important documents that led to an immediate settlement satisfying the Subcontractor’s efforts and eliminating further arbitration expenses. Note: resolution occurred within six weeks of Excell’s engagement.
Multi-million dollar lawsuit, State of Utah against Department of Agriculture
- A quasi-governmental organization was harmed by the unilateral actions of the Office of the Secretary of Agriculture. Excell was engaged from day one, and it positioned the law firm and the State of Utah for the necessitated actions. Negotiations were conducted, a legal proceeding was imminent, and matter was settled on the courthouse steps. Millions involved, exact amount not releasable. Client satisfied with outcome.
$1.2 million Consolidated Pass-Through REA, Firm Fixed-Price Contract, USACE
- Subcontractor engaged Excell to assist in resolving unpaid costs by prime contractor. Excell implemented a historically successful strategy – consolidating 18 unresolved REA’s into one global REA, identifying additional recoverable costs not being claimed by subcontractor, and spelling out the “cause-and-effect” (nexus) relationship between Government directed changes (and constructive Changes) and additional costs incurred by the subcontractor. This effort involved setting up a pass-through claim of the Subcontractor, through the Prime Contractor, to the Government. Due to an uncooperative Prime contractor, the Subcontractor brought a Miller Act claim against the bonding company, using Excell’s global REA as foundational support for the claim. Claim pending in Federal District Court.
$750K REA, Firm Fixed-Price, Design-Build Contract, USACE
- This REA contested improper assessment of Liquidated Damages based on the Government’s unilateral modification changing the size of a generator after the contract completion date had expired; the REA was denied by the Contracting Officer, and the subsequent appeal resulted in a satisfactory settlement by Mediation.
Common REA Issues, Generally
While the above list is not all-inclusive, it does highlight the unique situations in which Excell has assisted various contractors not only to “deal with,” but to move forward in a positive position. So, while all REAs include a multitude of unique issues encountered during the life of the project, there are many issues that seem to reoccur when dealing with construction contracts. Some of the most common issues Excell handles when preparing REAs for our clients include:
- Overly Generic Specifications
- Government’s implied warranty of constructability
- Impractical/Impossible specifications
- Multiple Specification Interpretations
- Prescriptive vs. Performance Specifications
Defective Contract Documents;
- Ambiguity or inconsistency
- Order of Precedence errors
- Unreasonable interpretation of applicable standards
- Unresponsive to Requests For Information (RFIs)
- Failure to incorporate correct Unified Facilities Criteria (UFCs)
Incomplete/Incorrect Design Drawings
- Lack of Design Discipline Coordination
- Improper control asserted on Design-Build Contracts
- Failure to issue RFP and review COP in a timely manner
- Inadequate, or Incorrect As-Builts issued with RFP
- Refusal to enforce A&E deadlines, or limit A&E changes made
Differing Site Conditions
- Category I
- Nondisclosure of site conditions
- Refusal to allow contractor to do non-destructive testing
- Category II
- Interference with site inspection/investigation data
- Hazardous Materials
- Failure to conduct or provide hazardous materials testing
Delay, Disruption, Ripple Effect
- Notice to Proceed (NTP) Delays
- Constructive Suspension of Work
- Stop Work Orders
- Interference with Contractor’s work
- Delays in Inspections
- Delays in approving Drawings, Proposals, Submittals, etc.
- Weather Delays
- Site Access Issues
- Critical Path Delay
- Time Impact Analysis
- Refusal to participate in contractually required partnering
- Overzealous inspections
- Multiple people issuing directives to the contractor with no clear authority
- Violations of Duty of Good Faith and Fair Dealing
- Anti-Deficiency Act violations
Purchase Order / Pricing Disputes
- Unilateral deductive Modifications issued without justification on the cost reduction
- Pricing expired when approval is granted, owner refusal to pay the current price
- Unabsorbed Overhead
- Extended General Conditions
- Concurrent delays
- Beneficial Occupancy Date
- Punitive or retaliatory in nature
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