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COHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team. 2021 CONSTRUCTION FORECAST: THE ROAD TO RECOVERYSEE MORE ONCOHENSEGLIAS.COM
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that theUNBALANCED BIDDING
Unbalanced bidding is where a bidder places a high price on some items and a low price on other items in a unit price contract. The courts have observed that, “bid pricing involves subjective business judgments and that comparison of a competitor’s prices with one’s own prices is not by itself sufficient to establish that a bid is unbalanced.” Ultra Technology Corp., B-230309.6, 89-1EXTENDED OVERHEAD
Job-Site Overhead A well-recognized method of proving extended job site overhead is to derive a daily rate by dividing the total job site overhead costs by the total number of days of performance and then multiplying the daily rate by the number of days of delay. Shirley Contracting Corp., ASBCA No. 29848, 85 – 1 BCA ¶ 17,858 (1985) ; Kemmons-Wilson, Inc., ASBCA No. 16167, 72 – 2 BCA 9689 MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-upon DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” TEAMING VS. JOINT VENTURING The “team” is set up before the bidding/proposal process, the contractors work together on the bid/proposal, and the procuring agency is made aware of the “team” prior to the source selection process. The teaming agreement is customarily submitted as part of the bid/proposal itself. In comparison, joint venturing is when twocompanies
ENTITLEMENT TO PROFIT ON DELAY CLAIMS Entitlement to Profit on Delay Claims Under the “Changes” clause, a contractor would be entitled to profit as an element of its quantum recovery if delays are compensable. Owen L. Schwam Construction Co., Inc., ASBCA No. 22407, 79 – 2 BCA ¶ 13919. Under the “Suspension of Work” clause, however, profit on the delay damages is expressly prohibited as an element of quantum. The BoardsCOHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team. 2021 CONSTRUCTION FORECAST: THE ROAD TO RECOVERYSEE MORE ONCOHENSEGLIAS.COM
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that theUNBALANCED BIDDING
Unbalanced bidding is where a bidder places a high price on some items and a low price on other items in a unit price contract. The courts have observed that, “bid pricing involves subjective business judgments and that comparison of a competitor’s prices with one’s own prices is not by itself sufficient to establish that a bid is unbalanced.” Ultra Technology Corp., B-230309.6, 89-1EXTENDED OVERHEAD
Job-Site Overhead A well-recognized method of proving extended job site overhead is to derive a daily rate by dividing the total job site overhead costs by the total number of days of performance and then multiplying the daily rate by the number of days of delay. Shirley Contracting Corp., ASBCA No. 29848, 85 – 1 BCA ¶ 17,858 (1985) ; Kemmons-Wilson, Inc., ASBCA No. 16167, 72 – 2 BCA 9689 MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-upon DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” TEAMING VS. JOINT VENTURING The “team” is set up before the bidding/proposal process, the contractors work together on the bid/proposal, and the procuring agency is made aware of the “team” prior to the source selection process. The teaming agreement is customarily submitted as part of the bid/proposal itself. In comparison, joint venturing is when twocompanies
ENTITLEMENT TO PROFIT ON DELAY CLAIMS Entitlement to Profit on Delay Claims Under the “Changes” clause, a contractor would be entitled to profit as an element of its quantum recovery if delays are compensable. Owen L. Schwam Construction Co., Inc., ASBCA No. 22407, 79 – 2 BCA ¶ 13919. Under the “Suspension of Work” clause, however, profit on the delay damages is expressly prohibited as an element of quantum. The Boards COHEN SEGLIAS ATTORNEYS NAMED TO THE 2021 PENNSYLVANIA Numerous Cohen Seglias attorneys were selected to the 2021 Pennsylvania Super Lawyers and Rising Stars lists. 2021 HABITAT FOR HUMANITY PHILADELPHIA BUILDING HOPE As a longtime supporter of Habitat for Humanity Philadelphia and its mission to build strength, stability, and self-reliance through shelter, Cohen Seglias was proud to sponsor their Building Hope Virtual Lunch-In on May 4. The Building Hope Lunch is Habitat Philadelphia’s signature annual event that celebrates community, highlights their work and partnerships, and shares the success of the CAN I GO BACK TO COLLEGE IN PERSON IF I’M NOT FULLY Now that the COVID -19 vaccine is more accessible to young people, many students are wondering when college life will go back to normal. MATERIAL COST ESCALATION PACKAGE Our CCRM Group has prepared sample notice letters for use on jobs where construction has or is about to resume under pre-existingcontracts.
EXTENDED OVERHEAD
Job-Site Overhead A well-recognized method of proving extended job site overhead is to derive a daily rate by dividing the total job site overhead costs by the total number of days of performance and then multiplying the daily rate by the number of days of delay. Shirley Contracting Corp., ASBCA No. 29848, 85 – 1 BCA ¶ 17,858 (1985) ; Kemmons-Wilson, Inc., ASBCA No. 16167, 72 – 2 BCA 9689 DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that theUNBALANCED BIDDING
Unbalanced bidding is where a bidder places a high price on some items and a low price on other items in a unit price contract. The courts have observed that, “bid pricing involves subjective business judgments and that comparison of a competitor’s prices with one’s own prices is not by itself sufficient to establish that a bid is unbalanced.” Ultra Technology Corp., B-230309.6, 89-1 DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II SAMPLE NOVATION AGREEMENT A. The Parties Agree to the Following Facts: The Government, represented by various Contracting Officers, has entered into certain contracts and purchase orders with the Transferor, all as set forth in the attached list marked “Exhibit A” to this Agreement and herein incorporated by reference. The term “Contracts” as used in thisPRIVITY OF CONTRACT
The Tucker Act allows the United States Court of Federal Claims to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the CDA, including a dispute concerning termination of contract. 28 U.S.C. § 1491(a)(2). Subcontractors, however, generally do not have the right to seek and collect contract damages from the government pursuant to theCOHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team. 2021 CONSTRUCTION FORECAST: THE ROAD TO RECOVERYSEE MORE ONCOHENSEGLIAS.COM
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that theUNBALANCED BIDDING
Unbalanced bidding is where a bidder places a high price on some items and a low price on other items in a unit price contract. The courts have observed that, “bid pricing involves subjective business judgments and that comparison of a competitor’s prices with one’s own prices is not by itself sufficient to establish that a bid is unbalanced.” Ultra Technology Corp., B-230309.6, 89-1 MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-uponEXTENDED OVERHEAD
Job-Site Overhead A well-recognized method of proving extended job site overhead is to derive a daily rate by dividing the total job site overhead costs by the total number of days of performance and then multiplying the daily rate by the number of days of delay. Shirley Contracting Corp., ASBCA No. 29848, 85 – 1 BCA ¶ 17,858 (1985) ; Kemmons-Wilson, Inc., ASBCA No. 16167, 72 – 2 BCA 9689 BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II TEAMING VS. JOINT VENTURING The “team” is set up before the bidding/proposal process, the contractors work together on the bid/proposal, and the procuring agency is made aware of the “team” prior to the source selection process. The teaming agreement is customarily submitted as part of the bid/proposal itself. In comparison, joint venturing is when twocompanies
ENTITLEMENT TO PROFIT ON DELAY CLAIMS Entitlement to Profit on Delay Claims Under the “Changes” clause, a contractor would be entitled to profit as an element of its quantum recovery if delays are compensable. Owen L. Schwam Construction Co., Inc., ASBCA No. 22407, 79 – 2 BCA ¶ 13919. Under the “Suspension of Work” clause, however, profit on the delay damages is expressly prohibited as an element of quantum. The BoardsCOHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team. 2021 CONSTRUCTION FORECAST: THE ROAD TO RECOVERYSEE MORE ONCOHENSEGLIAS.COM
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that theUNBALANCED BIDDING
Unbalanced bidding is where a bidder places a high price on some items and a low price on other items in a unit price contract. The courts have observed that, “bid pricing involves subjective business judgments and that comparison of a competitor’s prices with one’s own prices is not by itself sufficient to establish that a bid is unbalanced.” Ultra Technology Corp., B-230309.6, 89-1 MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-uponEXTENDED OVERHEAD
Job-Site Overhead A well-recognized method of proving extended job site overhead is to derive a daily rate by dividing the total job site overhead costs by the total number of days of performance and then multiplying the daily rate by the number of days of delay. Shirley Contracting Corp., ASBCA No. 29848, 85 – 1 BCA ¶ 17,858 (1985) ; Kemmons-Wilson, Inc., ASBCA No. 16167, 72 – 2 BCA 9689 BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II TEAMING VS. JOINT VENTURING The “team” is set up before the bidding/proposal process, the contractors work together on the bid/proposal, and the procuring agency is made aware of the “team” prior to the source selection process. The teaming agreement is customarily submitted as part of the bid/proposal itself. In comparison, joint venturing is when twocompanies
ENTITLEMENT TO PROFIT ON DELAY CLAIMS Entitlement to Profit on Delay Claims Under the “Changes” clause, a contractor would be entitled to profit as an element of its quantum recovery if delays are compensable. Owen L. Schwam Construction Co., Inc., ASBCA No. 22407, 79 – 2 BCA ¶ 13919. Under the “Suspension of Work” clause, however, profit on the delay damages is expressly prohibited as an element of quantum. The Boards COHEN SEGLIAS ATTORNEYS NAMED TO THE 2021 PENNSYLVANIA Numerous Cohen Seglias attorneys were selected to the 2021 Pennsylvania Super Lawyers and Rising Stars lists. 2021 HABITAT FOR HUMANITY PHILADELPHIA BUILDING HOPE As a longtime supporter of Habitat for Humanity Philadelphia and its mission to build strength, stability, and self-reliance through shelter, Cohen Seglias was proud to sponsor their Building Hope Virtual Lunch-In on May 4. The Building Hope Lunch is Habitat Philadelphia’s signature annual event that celebrates community, highlights their work and partnerships, and shares the success of the MATERIAL COST ESCALATION PACKAGE Our CCRM Group has prepared sample notice letters for use on jobs where construction has or is about to resume under pre-existingcontracts.
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that the CAN I GO BACK TO COLLEGE IN PERSON IF I’M NOT FULLY Now that the COVID -19 vaccine is more accessible to young people, many students are wondering when college life will go back to normal.UNBALANCED BIDDING
Unbalanced bidding is where a bidder places a high price on some items and a low price on other items in a unit price contract. The courts have observed that, “bid pricing involves subjective business judgments and that comparison of a competitor’s prices with one’s own prices is not by itself sufficient to establish that a bid is unbalanced.” Ultra Technology Corp., B-230309.6, 89-1EXTENDED OVERHEAD
Job-Site Overhead A well-recognized method of proving extended job site overhead is to derive a daily rate by dividing the total job site overhead costs by the total number of days of performance and then multiplying the daily rate by the number of days of delay. Shirley Contracting Corp., ASBCA No. 29848, 85 – 1 BCA ¶ 17,858 (1985) ; Kemmons-Wilson, Inc., ASBCA No. 16167, 72 – 2 BCA 9689 DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type IIRESPONSIBILITY
A responsible contractor is one who demonstrates that he is capable of performing the contract requirements. Unlike responsiveness, which must be determined at the time of bid opening, responsibility can be demonstrated at any time prior to award. Therefore, if a contractor is initially found to be non-responsible, he can discuss the matter with the contracting officer and make changes in SAMPLE NOVATION AGREEMENT A. The Parties Agree to the Following Facts: The Government, represented by various Contracting Officers, has entered into certain contracts and purchase orders with the Transferor, all as set forth in the attached list marked “Exhibit A” to this Agreement and herein incorporated by reference. The term “Contracts” as used in thisCOHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team.LIQUIDATED DAMAGES
Liquidated damages are a fixed amount set forth in a contract by an agency to compensate the agency for unexcused delay in the performance of the contract. The purpose of the liquidated damages clause is to establish, in advance, a reasonable estimate of the damages that would be incurred by the agency if there is an unexcused delay, or a breach of contract, which causes the work to be 2021 CONSTRUCTION FORECAST: THE ROAD TO RECOVERYSEE MORE ONCOHENSEGLIAS.COM
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that the DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-uponORDER OF PRECEDENCE
A typical Order of Precedence clause provides: In case of a difference between drawings and specifications, the specifications shall govern. In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” SAMPLE NOVATION AGREEMENT A. The Parties Agree to the Following Facts: The Government, represented by various Contracting Officers, has entered into certain contracts and purchase orders with the Transferor, all as set forth in the attached list marked “Exhibit A” to this Agreement and herein incorporated by reference. The term “Contracts” as used in this ETHICS IN FEDERAL GOVERNMENT CONTRACTING Ethics in Federal Government Contracting In view of recent changes to the Federal Acquisition Regulation that impose new requirements relating to ethics in federal government contracting, it is crucial for government contractors to be vigilant in their adherence to all laws and regulations. It is also important for government contractors to implement a Code of Business Ethics and Conduct andCOHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team.LIQUIDATED DAMAGES
Liquidated damages are a fixed amount set forth in a contract by an agency to compensate the agency for unexcused delay in the performance of the contract. The purpose of the liquidated damages clause is to establish, in advance, a reasonable estimate of the damages that would be incurred by the agency if there is an unexcused delay, or a breach of contract, which causes the work to be 2021 CONSTRUCTION FORECAST: THE ROAD TO RECOVERYSEE MORE ONCOHENSEGLIAS.COM
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that the DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-uponORDER OF PRECEDENCE
A typical Order of Precedence clause provides: In case of a difference between drawings and specifications, the specifications shall govern. In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” SAMPLE NOVATION AGREEMENT A. The Parties Agree to the Following Facts: The Government, represented by various Contracting Officers, has entered into certain contracts and purchase orders with the Transferor, all as set forth in the attached list marked “Exhibit A” to this Agreement and herein incorporated by reference. The term “Contracts” as used in this ETHICS IN FEDERAL GOVERNMENT CONTRACTING Ethics in Federal Government Contracting In view of recent changes to the Federal Acquisition Regulation that impose new requirements relating to ethics in federal government contracting, it is crucial for government contractors to be vigilant in their adherence to all laws and regulations. It is also important for government contractors to implement a Code of Business Ethics and Conduct and COHEN SEGLIAS RANKED SEVENTH IN NATION BY CONSTRUCTION Cohen Seglias was once again ranked among the top national construction law firms in Construction Executive's "Top 50 Law Firms"list.
CONTRACTING BY NEGOTIATION The second major acquisition method employed by the federal government, in addition to sealed bidding (FAR Part 14), is contracting by negotiation (FAR Part 15). Through the use of the competitive proposal solicitation form, the government solicits offers from prospective contractors. After the receipt of such offers, the procedure permits bargaining, and usually affords an opportunity forORDER OF PRECEDENCE
A typical Order of Precedence clause provides: In case of a difference between drawings and specifications, the specifications shall govern. In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a 2021 HABITAT FOR HUMANITY PHILADELPHIA BUILDING HOPE As a longtime supporter of Habitat for Humanity Philadelphia and its mission to build strength, stability, and self-reliance through shelter, Cohen Seglias was proud to sponsor their Building Hope Virtual Lunch-In on May 4. The Building Hope Lunch is Habitat Philadelphia’s signature annual event that celebrates community, highlights their work and partnerships, and shares the success of the COHEN SEGLIAS ATTORNEYS NAMED TO THE 2021 PENNSYLVANIA Numerous Cohen Seglias attorneys were selected to the 2021 Pennsylvania Super Lawyers and Rising Stars lists.CONSTRUCTIVE CHANGE
Constructive Change. In most all federal government contracts there is a Changes clause that permits the government to direct changes to certain specified requirements of the contract. A change issued pursuant to this clause is called a directed change. It is accomplished through a formal directive issued by the contractingofficer.
DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type IIDEDUCTIVE CHANGE
Generally, the rule governing deductive changes is the same as that which governs additive changes: to keep the contractor whole when the government modifies a contract. Bruce Constr. Corp. v. United States, 324 F.2d 516 (Ct. Cl. 1963). Thus, the pricing for the deductive change should be based on the contractor’s current estimate or“would
CAN I GO BACK TO COLLEGE IN PERSON IF I’M NOT FULLY Now that the COVID -19 vaccine is more accessible to young people, many students are wondering when college life will go back to normal. MATERIAL COST ESCALATION PACKAGE Our CCRM Group has prepared sample notice letters for use on jobs where construction has or is about to resume under pre-existingcontracts.
COHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team.LIQUIDATED DAMAGES
Liquidated damages are a fixed amount set forth in a contract by an agency to compensate the agency for unexcused delay in the performance of the contract. The purpose of the liquidated damages clause is to establish, in advance, a reasonable estimate of the damages that would be incurred by the agency if there is an unexcused delay, or a breach of contract, which causes the work to be 2021 CONSTRUCTION FORECAST: THE ROAD TO RECOVERYSEE MORE ONCOHENSEGLIAS.COM
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that the DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-uponORDER OF PRECEDENCE
A typical Order of Precedence clause provides: In case of a difference between drawings and specifications, the specifications shall govern. In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” SAMPLE NOVATION AGREEMENT A. The Parties Agree to the Following Facts: The Government, represented by various Contracting Officers, has entered into certain contracts and purchase orders with the Transferor, all as set forth in the attached list marked “Exhibit A” to this Agreement and herein incorporated by reference. The term “Contracts” as used in this ETHICS IN FEDERAL GOVERNMENT CONTRACTING Ethics in Federal Government Contracting In view of recent changes to the Federal Acquisition Regulation that impose new requirements relating to ethics in federal government contracting, it is crucial for government contractors to be vigilant in their adherence to all laws and regulations. It is also important for government contractors to implement a Code of Business Ethics and Conduct andCOHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team.LIQUIDATED DAMAGES
Liquidated damages are a fixed amount set forth in a contract by an agency to compensate the agency for unexcused delay in the performance of the contract. The purpose of the liquidated damages clause is to establish, in advance, a reasonable estimate of the damages that would be incurred by the agency if there is an unexcused delay, or a breach of contract, which causes the work to be 2021 CONSTRUCTION FORECAST: THE ROAD TO RECOVERYSEE MORE ONCOHENSEGLIAS.COM
DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that the DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-uponORDER OF PRECEDENCE
A typical Order of Precedence clause provides: In case of a difference between drawings and specifications, the specifications shall govern. In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” SAMPLE NOVATION AGREEMENT A. The Parties Agree to the Following Facts: The Government, represented by various Contracting Officers, has entered into certain contracts and purchase orders with the Transferor, all as set forth in the attached list marked “Exhibit A” to this Agreement and herein incorporated by reference. The term “Contracts” as used in this ETHICS IN FEDERAL GOVERNMENT CONTRACTING Ethics in Federal Government Contracting In view of recent changes to the Federal Acquisition Regulation that impose new requirements relating to ethics in federal government contracting, it is crucial for government contractors to be vigilant in their adherence to all laws and regulations. It is also important for government contractors to implement a Code of Business Ethics and Conduct and COHEN SEGLIAS RANKED SEVENTH IN NATION BY CONSTRUCTION Cohen Seglias was once again ranked among the top national construction law firms in Construction Executive's "Top 50 Law Firms"list.
CONTRACTING BY NEGOTIATION The second major acquisition method employed by the federal government, in addition to sealed bidding (FAR Part 14), is contracting by negotiation (FAR Part 15). Through the use of the competitive proposal solicitation form, the government solicits offers from prospective contractors. After the receipt of such offers, the procedure permits bargaining, and usually affords an opportunity forORDER OF PRECEDENCE
A typical Order of Precedence clause provides: In case of a difference between drawings and specifications, the specifications shall govern. In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a 2021 HABITAT FOR HUMANITY PHILADELPHIA BUILDING HOPE As a longtime supporter of Habitat for Humanity Philadelphia and its mission to build strength, stability, and self-reliance through shelter, Cohen Seglias was proud to sponsor their Building Hope Virtual Lunch-In on May 4. The Building Hope Lunch is Habitat Philadelphia’s signature annual event that celebrates community, highlights their work and partnerships, and shares the success of the COHEN SEGLIAS ATTORNEYS NAMED TO THE 2021 PENNSYLVANIA Numerous Cohen Seglias attorneys were selected to the 2021 Pennsylvania Super Lawyers and Rising Stars lists.CONSTRUCTIVE CHANGE
Constructive Change. In most all federal government contracts there is a Changes clause that permits the government to direct changes to certain specified requirements of the contract. A change issued pursuant to this clause is called a directed change. It is accomplished through a formal directive issued by the contractingofficer.
DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type IIDEDUCTIVE CHANGE
Generally, the rule governing deductive changes is the same as that which governs additive changes: to keep the contractor whole when the government modifies a contract. Bruce Constr. Corp. v. United States, 324 F.2d 516 (Ct. Cl. 1963). Thus, the pricing for the deductive change should be based on the contractor’s current estimate or“would
CAN I GO BACK TO COLLEGE IN PERSON IF I’M NOT FULLY Now that the COVID -19 vaccine is more accessible to young people, many students are wondering when college life will go back to normal. MATERIAL COST ESCALATION PACKAGE Our CCRM Group has prepared sample notice letters for use on jobs where construction has or is about to resume under pre-existingcontracts.
COHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team. DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that theCONSTRUCTIVE CHANGE
Constructive Change. In most all federal government contracts there is a Changes clause that permits the government to direct changes to certain specified requirements of the contract. A change issued pursuant to this clause is called a directed change. It is accomplished through a formal directive issued by the contractingofficer.
DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-uponMATTHEW R. SKAROFF
Associate. Philadelphia. mskaroff@cohenseglias.com. 267.238.4717. Overview. Matthew concentrates his practice in construction litigation and represents contractors, subcontractors, design professionals, owners, and other parties concerning private and public construction projects. He also has substantial experience in domestic andinternational
MISTAKE IN BID
The Federal Acquisition Regulations require that after the opening of bids, the contracting officer should examine all bids for possible mistakes. In federal government construction contracts, the procedures for dealing with mistakes in bids are far more lenient than those found in most state and local jurisdictions. Once a contracting officer is placed on notice of a possible mistake, the ENTITLEMENT TO PROFIT ON DELAY CLAIMS Entitlement to Profit on Delay Claims Under the “Changes” clause, a contractor would be entitled to profit as an element of its quantum recovery if delays are compensable. Owen L. Schwam Construction Co., Inc., ASBCA No. 22407, 79 – 2 BCA ¶ 13919. Under the “Suspension of Work” clause, however, profit on the delay damages is expressly prohibited as an element of quantum. The Boards TRADEOFF – PRICE/TECHNICAL In a best value procurement, it is the function of the source selection official to perform a price/non-price factor tradeoff, that is, to determine whether one proposal’s superiority under the non-price factor (or factors) is worth a higher price. A. G. Cullen Construction, Inc., B-284049.2, 2000 CPD ¶ 45 (Comp. Gen. Feb. 22, 2000). Accordingly, where the RFP identifies past performance BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.”COHEN SEGLIAS
Cohen Seglias Promotes Three Construction Attorneys to Partners. We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group. Continue Reading Meet Our Team. DIFFERING SITE CONDITIONS Type I Elements: The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition: In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition must prove, by a preponderance of the evidence, ‘that theCONSTRUCTIVE CHANGE
Constructive Change. In most all federal government contracts there is a Changes clause that permits the government to direct changes to certain specified requirements of the contract. A change issued pursuant to this clause is called a directed change. It is accomplished through a formal directive issued by the contractingofficer.
DIFFERING SITE CONDITIONS CLAUSE This clause places the risk of unknown site conditions (sometimes referred to as “changed conditions”) on the government. The purpose of the clause is to avoid having contractors place contingencies in their bids for unknown subsurface or other physical site conditions. There are two types of differing site conditions and these are sometimes referred to as “Type I” and “Type II MATERIAL COST ESCALATION AND WAYS FOR CONTRACTORS TO BEAT Material Price Escalation Clauses. Some contracts include a material price escalation clause that allows the parties to adjust the price based on an agreed-upon metric. For example, the measure could be the difference between the price quoted at bid time and the price of the material when delivered if the price change exceeds an agreed-uponMATTHEW R. SKAROFF
Associate. Philadelphia. mskaroff@cohenseglias.com. 267.238.4717. Overview. Matthew concentrates his practice in construction litigation and represents contractors, subcontractors, design professionals, owners, and other parties concerning private and public construction projects. He also has substantial experience in domestic andinternational
MISTAKE IN BID
The Federal Acquisition Regulations require that after the opening of bids, the contracting officer should examine all bids for possible mistakes. In federal government construction contracts, the procedures for dealing with mistakes in bids are far more lenient than those found in most state and local jurisdictions. Once a contracting officer is placed on notice of a possible mistake, the ENTITLEMENT TO PROFIT ON DELAY CLAIMS Entitlement to Profit on Delay Claims Under the “Changes” clause, a contractor would be entitled to profit as an element of its quantum recovery if delays are compensable. Owen L. Schwam Construction Co., Inc., ASBCA No. 22407, 79 – 2 BCA ¶ 13919. Under the “Suspension of Work” clause, however, profit on the delay damages is expressly prohibited as an element of quantum. The Boards TRADEOFF – PRICE/TECHNICAL In a best value procurement, it is the function of the source selection official to perform a price/non-price factor tradeoff, that is, to determine whether one proposal’s superiority under the non-price factor (or factors) is worth a higher price. A. G. Cullen Construction, Inc., B-284049.2, 2000 CPD ¶ 45 (Comp. Gen. Feb. 22, 2000). Accordingly, where the RFP identifies past performance BUY AMERICAN ACT FLOWCHART On January 19, 2021, the FAR Council issued a final rule that makes substantial changes to the FAR’s Buy American requirements in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” COHEN SEGLIAS RANKED SEVENTH IN NATION BY CONSTRUCTION Cohen Seglias was once again ranked among the top national construction law firms in Construction Executive's "Top 50 Law Firms"list.
OUR PEOPLE | COHEN SEGLIAS Our attorneys are consistently recognized as top leaders in legal rankings such as Chambers USA, Best Lawyers, and Super Lawyers. MATERIAL COST ESCALATION PACKAGE Our CCRM Group has prepared sample notice letters for use on jobs where construction has or is about to resume under pre-existingcontracts.
CAN I GO BACK TO COLLEGE IN PERSON IF I’M NOT FULLY Now that the COVID -19 vaccine is more accessible to young people, many students are wondering when college life will go back to normal.UNBALANCED BIDDING
Unbalanced bidding is where a bidder places a high price on some items and a low price on other items in a unit price contract. The courts have observed that, “bid pricing involves subjective business judgments and that comparison of a competitor’s prices with one’s own prices is not by itself sufficient to establish that a bid is unbalanced.” Ultra Technology Corp., B-230309.6, 89-1MISTAKE IN BID
The Federal Acquisition Regulations require that after the opening of bids, the contracting officer should examine all bids for possible mistakes. In federal government construction contracts, the procedures for dealing with mistakes in bids are far more lenient than those found in most state and local jurisdictions. Once a contracting officer is placed on notice of a possible mistake, theLOSS OF EFFICIENCY
Loss of Efficiency. When a contractor claims loss of labor efficiency/productivity, it contends, in essence, that its ability to perform a particular work activity was impaired by government action for which the government must bear responsibility. Necessary to the success of such a claim is a demonstration by the contractor of anormal or
ETHICS IN FEDERAL GOVERNMENT CONTRACTING Ethics in Federal Government Contracting In view of recent changes to the Federal Acquisition Regulation that impose new requirements relating to ethics in federal government contracting, it is crucial for government contractors to be vigilant in their adherence to all laws and regulations. It is also important for government contractors to implement a Code of Business Ethics and Conduct and TRADEOFF – PRICE/TECHNICAL In a best value procurement, it is the function of the source selection official to perform a price/non-price factor tradeoff, that is, to determine whether one proposal’s superiority under the non-price factor (or factors) is worth a higher price. A. G. Cullen Construction, Inc., B-284049.2, 2000 CPD ¶ 45 (Comp. Gen. Feb. 22, 2000). Accordingly, where the RFP identifies past performance EXCUSABLE AND NON-EXCUSABLE DELAYS Excusable Delays are delays that are unforeseeable and beyond the control of the contractor. Non-Excusable Delays are delays that are foreseeable or within the contractor’s control. Obviously, the distinction between these two is significant in that it determines which party is liable for the delay. Similarly, it also dictates whether or not a contractor would be entitled to a time extensionSkip to Content
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WE MOVED! COHEN SEGLIAS EXPANDS ITS PHILADELPHIA PRESENCE After 15 years at 30 South 17th Street, we are excited to announce our move to 1600 Market Street, where we occupy all of the 32nd floor and half of the 31st floor.Continue Reading
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New Partner Announcement COHEN SEGLIAS PROMOTES THREE CONSTRUCTION ATTORNEYS TO PARTNERS We are excited to announce the promotions of Daniel Fierstein, Kathleen Morley, and Jackson Nichols to the firm’s partnership, effective January 1, 2021. Dan, Kathleen, and Jackson are all members of the firm’s Construction Group.Continue Reading
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