BID PROTESTS – PROCESS AND PROCEDURES
INTRODUCTION Fresh off the heels of another successful bid protest, Excell Consulting shares the following summary of important information regarding Bid Protests and the process required to…
Below you can find a wide range of articles, blog posts, and other publications written by the professional consultants at Excell. These entries cover a wide range of topic areas and represent a substantial source of information for anyone interested in one of the many areas of construction contract consulting, management, and administration Excell has had experience with over the 35 plus years it has been proudly serving its clients.
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INTRODUCTION Fresh off the heels of another successful bid protest, Excell Consulting shares the following summary of important information regarding Bid Protests and the process required to…
YES, YOU CAN RECOVER COSTS RELATING TO INFLATION If Your Claim is Presented with the Right Strategy! — For a printable PDF of this blog post and…
DoD ISSUES QUESTIONABLE GUIDANCE ON INFLATION Economic Price Adjustment Clause in New, Existing, and Option Contracts — INTRODUCTION In the midst of decades-high inflation, the Department of…
VALUE ENGINEERING CHANGE PROPOSALS (VECPs) CAPTURE A 55% SHARE OF THE COST SAVINGS FOR AN EXTENDED SHARE PERIOD ON LONG-TERM CONTRACTS INTRODUCTION Value Engineering Change…
Concurrent delay is a defense that contractors can use against an owner when the owner is threatening to assess Liquidated Damages. Likewise, a subcontractor can use concurrent…
Terminations for Convenience (T4Cs) on Government contracts are becoming more and more common in today’s contracting arena. When they do occur, many contractors don’t have much in…
Don’t Take the Risk! Excell’s Administrative Costs Associated with Preparation of the Border Wall Contract Termination Settlement Proposals are 100% Recoverable! (i.e., bottom line settlement negotiation situations)…
INTRODUCTION In a perfect world, when working on a Government contract, a contractor will always obtain written direction from the Contracting Officer before performing any out-of-scope work….
This post is a follow-on to our previous post: COVID-19 Notice Requirements, Business Risk Insurance, and YOUR PROFITS! Introduction As discussed in our previous post, which can…
YOU NEED TO PROTECT YOUR RIGHTS, TODAY! With the recent global spread of COVID-19, the construction world has changed, along with the rules it operates by. Now…
Court Finally Recognizes that Government’s Actual Knowledge of Changes Fulfills Notice Requirement INTRODUCTION A Government agency’s typical first line of defense when refuting contractor claims that it…
Government Shutdown Survival Checklist What should your organization be thinking about, and do you REALLY understand your rights? Introduction Federal. Government. Shutdown. Three words that are likely to stir…
When False Claims Cause Contractual Damages: Pursuing Parallel Qui Tam and Breach Claims, and the Public Disclosure Conundrum J. Taylor Benson, EXCELL CONSULTING INTERNATIONAL, INC. / BENSON LAW…
A construction contractor was awarded a multi-million dollar contract to complete a project on a U.S. military base and ultimately encountered a multitude of problems throughout the…
Excell Consulting Secures $1.3 million Partial Termination Settlement A USACE Firm Fixed-Price Contract in the Middle East was partially Terminated for the Convenience of the Government….
INTRODUCTION Two major developments in 2016 have altered the scope of both liability and damages under the False Claims Act (“FCA”). First, the Supreme Court has endorsed…
Excell Prepares and Negotiates $2.3 million REA for Subcontractor This REA included Defective and Deficient Contract Documents, Differing Site Conditions, Out of Scope Work, Unreasonable Specifications, Cardinal…
The Freedom of Information Act INTRODUCTION The Freedom of Information Act (“FOIA”) is an effective tool for government contractors in researching government programs and activities, as…
Similar to the prior “Are you Prepared for Government Contracting?” newsletter, this post will expand on the fundamental principles Contractors should know and understand going into a…
As a follow-on to our previous newsletter, we will be posting a 10-part series addressing Government Contracting Fundamentals that every Government Contractor should know. Accordingly, we encourage…
PART III: DOL Issues Final Rule for Mandatory Paid Sick Leave FINAL RULE ON PAID SICK LEAVE The United States Department of Labor (DOL) recently released its…
INTRODUCTION Value Engineering Change Proposals (VECPs) incentivize prime construction contractors to voluntarily submit proposals to identify ways the Federal Government can reduce costs. In turn, if the…
INTRODUCTION If you work with Government Contracts – especially CONSTRUCTION CONTRACTS – you need to read this!! REQUEST FOR EQUITABLE ADJUSTMENT (REA) A contractor recently recovered $3.5…
Excell Consulting International (Excell) recently resolved a $7.5 million claim request submitted to Zurich. After a Subcontractor was defaulted for cause on a construction project in Las…
Excell Consulting’s $1 million Request for Equitable Adjustment Approved by DOL The successful REA was submitted to the Department of Labor under our client’s Firm Fixed-Price contract….
INTRODUCTION If you work with Services Contracts – especially INFORMATION TECHNOLOGY, SYSTEMS ENGINEERING or TECHNICAL ASSISTANCE SERVICES AND/OR OTHER KNOWLEDGE-BASED PROFESSIONAL SERVICES – you need to read…
$5.1 million REA, Firm Fixed-Price Contract This REA involved Delay, Disruption, Ripple Effect, Critical Path Delay, Defective Specifications, Defective Contract Documents, Maladministration, and lack of Partnering. NOTE:…
INTRODUCTION Is your proprietary data safe from disclosure by the Government? According to a recent Court of Federal Claims (Court) decision, if your proprietary data is not…
INTRODUCTION Contract Changes that are directed via Government modification often mean more work and more money for the contractor. However, contractors should consider a number of factors…
INTRODUCTION When a contractor in entitled to an adjustment to the cost or time on a contract, the contractor is expected to prove its costs by submitting…
INTRODUCTION Contract documents for a construction project are an imperfect form of communication. The Architect or Engineer does its best to translate the owner’s needs into plans…
INTRODUCTION Costs incurred as a result of Sovereign Acts of the Government are generally not compensable. The recent Armed Services Board of Appeals (ASBCA or Board) Appeal…
Should I File in State or Federal Court? INTRODUCTION As explained in a previous post, Subcontractors and Sub-subcontractors on federal government construction projects can recover payments…
Knowing the Different Types and How to Handle Them Properly. This article is in all probability one of the most important ever generated by Excell because the issues of Order of Precedence, Site Visit Responsibilities, and Differing Site Conditions, have recently been ruled on in a most favorable light by the United States Court of Appeals for the Federal…
INTRODUCTION As previously discussed, President Obama signed an executive order on September 7, 2015, requiring federal contractors to provide their workers with a paid sick leave benefit….
INTRODUCTION President Obama signed an executive order on September 7, 2015, requiring that federal contractors and subcontractors provide their workers with up to seven days (56 hours)…
New Final Rule: Inflation Adjustments to Acquisition Thresholds The FAR Council issued a Final Rule on July 2, 2015 that will implement inflation-based adjustments to certain acquisition-related…
INTRODUCTION The Competition in Contracting Act (CICA) was enacted in 1984 for the purpose of ensuring that the Federal Government can only enter into contracts upon “…full…
INTRODUCTION A contractor submitting a Request for Equitable Adjustment (“REA”) is required to provide “proposal-type” documentation supporting its position and proving its entitlement. In addressing REAs, some…
INTRODUCTION Contracting officers have a duty to purchase supplies and services at fair and reasonable prices1. One method of ensuring that bid proposals and contracts are based…
INTRODUCTION The Federal Government inserts certain clauses into its construction contracts in order to protect itself. One such clause is the Termination for Default clause. The Termination…
INTRODUCTION Due to the complexity of construction, combined with changes often inherent as a result of the very nature of construction, a contractor’s actual performance can deviate…
The Small Business Administration (SBA) has proposed a small but significant change to the “Ostensible Subcontractor” Rule in 13 CFR § 121.103(h)(4). Under the proposed change, small businesses would be allowed to subcontract with similarly situated businesses without fear of running
It is common knowledge that when the government issues defective plans and specifications, its actions constitute a “Constructive Change” under FAR 52.243-4 “Changes.” But what happens when the government rejects a contractor’s submittals that are compliant with the contract plans and spec…
INTRODUCTION Many contractors have experienced a Government representative requesting a change to the work outlined in a construction contract. If the additional work requested is performed by…
INTRODUCTION When it comes to Quantum determinations, what you don’t know actually can hurt you. Quantum is a term that determines what is considered the “reasonable value…
INTRODUCTION The Contractor Performance Assessment Reporting System (CPARS) was initially developed to provide evaluations for all government contractors. The intention was to ensure that performance rating information…
This Part II will focus on the fallout of a material breach, including the right to stop work and the options for both the breaching and non-breaching parties.
Much has been written about the now infamous Department of Veterans Affairs’ (VA) medical facility construction project in Aurora, Colorado, which is projected to have over $1 billion in cost overruns (projected final cost of approximately $1.7 billion). The storylines include Kiewit-Turner…
INTRODUCTION All Government contracts are subject to the Termination for Convenience Clause (FAR 49.502). This clause allows the Government to terminate a contract whenever “…it is in…
INTRODUCTION A Contracting Officer (CO) must support their final decision on a contractor claim with some type of finding of fact. While the Contracting Officer’s Final Decision…
INTRODUCTION Differing Site Conditions are commonplace in the construction arena. Contractors can potentially incur significant increases in costs and time when addressing and working with these newly…
INTRODUCTION Contractors who experience, and can prove, differing site conditions can recover certain costs associated with the impact of working around that site condition. A recent decision…
INTRODUCTION In the event that a stop-work order is lifted by the Government, the contractor is required to return to work immediately, and has only a 30-day…
The new Federal Acquisition Regulation (“FAR”) final rule, “Ending Trafficking in Persons,” became effective on March 2, 2015. The final rule, issued by the Department of Defense, General Services Administration, and National…
INTRODUCTION Change orders and modifications are common, if not inevitable, during the life of a construction contract. When changes to the contract occur, Field Office Overhead costs…
Requests for Equitable Adjustment (REA) and Claims are similar by definition; however, the purposes for filing either a REA or a Claim are quite different. It is important for a contractor to know the differences in order to…
INTRODUCTION Most individuals who have tried to communicate information to another person understand that the communication may not come across as intended. The same holds true with…
INTRODUCTION In 2013, the Federal Government secured $3.8 billion in settlements and judgments from civil cases involving fraud against the Government, under the False Claims Act (FCA)….
INTRODUCTION Before elaborating on the question of recovery of consulting fees and/or legal fees, let’s be clear on a major point: a claim situation does not exist…
INTRODUCTION Concurrent delay is a method that the owner of a project can use in its defense against a contractor when “allegations” that delays experienced, which affect…
EXECUTIVE ORDER In February 2014, President Obama signed an Executive Order entitled “Establishing a Minimum Wage for Contractors.” This order increased the minimum wage for workers employed…
INTRODUCTION When an appeal from a Contracting Officer’s final decision is filed with either the Armed Services Board of Contract Appeals (ASBCA) or the Civilian Board of…
SUSPENSION OF WORK The Suspension of Work clause, found in FAR 52.242-14, provides that if the contracting officer orders the suspension, delay or interruption of the contract…
INTRODUCTION Although electronic signatures are generally accepted as part of commerce and contracting today, some uncertainty remains about questions of validity, and what form of electronic signature…
ASSIGNMENT OF A FEDERAL CONTRACT In construction law, including government contracting, a party (assignor) to a contract may “assign” their rights and duties under the contract to…
INTRODUCTION As explained in a previous post, Subcontractors and Sub-subcontractors on federal government construction projects can recover payments due to them under the Miller Act. In pursuing…
INTRODUCTION The Armed Services Board of Appeals (ASBCA) recently held that, in a Termination for Convenience of the Government, reimbursement for the work of a closely held…
The terms “substantial completion” and “beneficial occupancy” are both often used interchangeably to indicate the same thing: the time or date when a construction site becomes useable…
INTRODUCTION The Armed Services Board of Contract Appeals (“ASBCA” or “Board”) recently addressed the “waiver” doctrine as it applies to government construction contracts: that is, the circumstances…
INTRODUCTION In Federal Government contracting, Subcontractors and Prime Contractors often face the dilemma of how to handle Subcontractor claims against the Prime that result from Government action…
INTRODUCTION I recently met with the president of a midsize general contracting company to discuss his company’s REA on one of its federal construction contracts. As we…
Editor’s Note: This is a re-publication of this article, which was originally published on November 22, 2011, in the Excell Report. Here is the latest updated version…
INTRODUCTION Editor’s Note: In the spirit of “Throwback Thursday,” we are re-publishing the following article originally written by CEO John Balch, which was originally printed in the…
INTRODUCTION To every rule, there are exceptions and nuances. Such is the case with CDA claims. Part 1 of this series set forth the fundamental requirements and…
INTRODUCTION Disputes stemming from a government construction contract are governed by the Contract Disputes Act (CDA), which sets forth rules as to how disputes between contractors and…
INTRODUCTION Every contractor will at some point have a project impacted by adverse weather. When a weather-related delay happens, additional costs are virtually inevitable. The general rule…
INTRODUCTION The U.S. Court of Appeals for the Federal Circuit (CAFC) recently reversed an opinion by the U.S. Court of Federal Claims (CFC) that is already being…
INTRODUCTION The U.S. Court of Appeals for the Federal Circuit (CAFC) recently reversed an opinion by the U.S. Court of Federal Claims (CFC) that is already being…
It does happen– it’s unfortunate, but your company could be fired from a Government contract — terminated for default! All Government contracts contain the Default clause provided under 52.249-8 (Default [Fixed-Price…
Case Example The prime contractor for a highway construction project subcontracted the excavation, grading, and paving work, and retained the rock crushing and placement work for itself….
Any Contractor performing work for the Government is aware of Liquidated Damages, which is provided by FAR Clause 52.211-12 “Liquidated Damages – Construction” that essentially provides that…
The Site Visit clause states that offerors are “urged and expected to inspect the site where services are to be performed and to satisfy themselves regarding all…
When additional work is directed by the Government after contract completion and acceptance, it is in the Government’s best interests to attempt enforcement of the contract’s warranty…
The process of determining the original intent of the contractor and owner is referred to as contract interpretation. This procedure typically involves establishing definitions, adding omitted words,…
Case Example Part of the work for this contract with the Navy to construct a processing and assembly building for explosives included the erection of 3 ½…
Have you heard about Section 1341 of the Small Business Jobs Act? The “Presumed Loss Rule” has BIG implications for contractors. If an organization ineligible for Small…
INTRODUCTION FAR 52.248-3 “Value Engineering Construction” allows cost recovery by a contractor which develops a more cost-effective method to perform the contract work. In effect, the Scope…
The Equal Access to Justice Act (EAJA) gives qualified contractors the right to recover a portion of the legal expense of pursuing a contract claim against the…
INTRODUCTION As of 23 December 2013, the Small Business Administration (SBA) has changed the size standards for certified small businesses in the Utilities and Construction sectors. What…
INTRODUCTION As defined under FAR 1.602-3(a), Unauthorized Commitments: “…means an agreement that is not binding solely because the Government representative who made it lacked the authority to…
INTRODUCTION This article is a supplement to the Differing Site Conditions newsletter provided by Excell because the Implied Duty of Good Faith and Fair Dealing has just…
INTRODUCTION This article is in all probability one of the most important ever generated by Excell because the issues of Order of Precedence, Site Visit Responsibilities, and…
INTRODUCTION The Prompt Payment Act was enacted in 1982 and has been amended (1988). Its purpose is designed to ensure that Government organizations issue timely payment to…
INTRODUCTION The Federal Government inserts clauses, in efforts to protect itself, into Government contracts to ensure that a contractor that is hired to perform work or provide…
INTRODUCTION In its September 2013 issue, the NCMA (National Contract Management Association) re-published an article from the Spring 2013 issue of The Public Contract Law Journal (GW…
INTRODUCTION Fraud committed by a Government contractor can lead to Debarment of a contractor by the Federal Government. Examples of Fraudulent activity perpetuated by a Government contractor…
INTRODUCTION On occasion, a contractor has likely experienced a Government representative requesting a change to the work outlined in a construction contract. If the additional work requested…
INTRODUCTION A contractor needs to understand proper procedure and timing when filing a claim against the Government. The claim process can be difficult for a contractor to…
THE 30-DAY PERIOD TO FILE A CLAIM INTRODUCTION Some contractors may not be aware that in the event of a stop-work order, if the order is lifted,…
HISTORY The Miller Act, 40 U.S.C. §§ 3131-3134, was enacted in 1935 and replaced the original Heard Act of 1894. (http://congressionalresearch.com/97-751/document.php) The Heard Act of 1894 was…
PART III: TRENDS AND EXPANSION OF THE FALSE CLAIMS ACT INTRODUCTION The False Claims Act (FCA) 31 U.S.C. §§ 3729–3733, was enacted to impose liability for contractors…
PART II: A ISSUES INVOLVING PENALTIES, “QUI TAM” ACTIONS, AND UNDERBIDDING AS A SOURCE OF LIABILITY INTRODUCTION As discussed in Part I, the False Claims Act (FCA)…
SMALL BUSINESS ADMINISTRATION FINAL AMENDED RULE “BOLSTERS” SMALL BUSINESS CONTRACTING PROGRAMS INTRODUCTION With the release of its Final Rule concerning the size and status of small businesses,…