As a construction contractor stuck in the down economy, you have probably began looking into federal and state public contracts. Its inevitable; we all know the government is still building, they build amazing projects, and they are certainly good for the money.
But as you ease your way into finding introductory resources, understanding public construction bidding, and looking at how wages are set by the Davis-Bacon Act or Project Labor Agreements – you can begin to foray into:
What happens when my bid is selected?
There are a lot of items that go into your federal contract. If you are a prime contractor negotiating with the public authority, you will generally be handed a lengthy AIA or ConsensusDOCS formatted agreement that follows the bidding specifications. If you are a subcontractor, you may be handed the new ConsensusDOCS federal subcontract template, or a vendor/subcontractor package created by the prime contractor’s counsel.
Both situations leave little room for negotiation and involve a wealth of provisions aimed at satisfying a number of federal guidelines, regulations and job-specific protocols.
So what are some vital principles that you should know before you look at your first federal contract?
(1) Contracts Must Meet Bidding Specifications –
For you prime contractors, do not expect to be able to alter the terms of your contract after bidding. Bidding is premised on the fact that each bidder accepts the same contract. Attempting to alter the terms of the contract after a bid has been accepted can lead to bid protests. Thus, contracting authorities are not going to bend or break your obligations.
(2) Contracts are Modeled After the Federal Acquisition Regulation –
The Federal Acquisition Regulation (FAR) is a 4 to 5 inch think manual mandating how the federal government procures work. The FAR can be located at Title 48 of the Code of Federal Regulations, Chapter 1 (48 CFR Ch. 1).
Know the FAR like the back of your hand. You do not need to know what each provision means, but know how it is indexed and how to locate relevant provisions.
The FAR is even more accessible these days thanks to new software like iFAR, an iPhone application that puts the FAR in your palm – out on the construction site. (iFAR includes the 2005 version of the FAR)
Do not be afraid of the FAR either. In many ways, it is written to be easily read and absorbed by even the greenest of contractors. You can always discuss your questions with your attorney.
(3) Contracts Might Include Terms That Are Not Written in the Contract –
Unfortunately, you cannot always base your understanding of your working relationship on the written contract. A doctrine known as the Christian Doctrine prevents just that.
The Christian Doctrine was established from the ruling in G.L. Christian & Associates v. United States, a 1963 case which found that found that if a contractual clause was required to be in a contract by the FAR, it would be incorporated into the contract by operation of law.
The Christian Doctrine has been further modified to apply (a) against the federal government in addition to against the contractor and (b) only for mandatory provisions in the FAR which “express a significant or deeply ingrained strand of public procurement policy.” See General Engineering Machine Works for more information on Part b above.
So, even though you have a contract, filed with a plethora of restrictions, regulations, obligations and codes of conduct – it can be expanded by the effect of law. This is even more reason to understand the FAR clearly.
Knowing these three principles will give you a good head start into obtaining a federal contract. The second step, for many contractors, is to find an attorney to help manage your risk and lead you through the construction process – dispute free.
— Reiser Legal LLC: The Builders Counsel Blog © 2010 – http://blog.reiserlegal.com/
