Upon contract award, the contracting officer issues a delegation letter to a COR who is an individual nominated for this position by a program manager, team lead, or some other person who supervises or oversees that individual's normal duties. The delegation letter makes the COR responsible for technically monitoring and directing contract performance. Direction authority makes the COR more than simply the technical "eyes and ears" of the contracting officer. It makes the COR the Government's principal legal agent for handling day-to-day management issues.

"Technical direction"is a term of art whose meaning and scope vary from contract to contract and from agency to agency.3 It allows the COR to add binding instructions concerning technical performance or to alter such instructions without recourse to contract modification or the need for an adjustment in the contract price or schedule.

Generally, it allows the COR to:

1. Accept or reject deliverables (e.g., hardware, software, systems, documentation, reports, and support services)

1. Schedule assignments with the contractor for work to be performed on an "as needed" basis;

1. Approve or disapprove technical submittals (e.g., preliminary work plans or schedules that set forth in detail how the contractor intends to perform the contract);

1. Interpret and clarify (but not change) the technical requirements including the contract's statement of work.

Remember that this authority does NOT permit the COR to change the contract terms and conditions, increase the contract price, or alter the contract performance schedule. Such actions require a contract modification signed by the CO.

ASSIGNMENT

Review the case study on pages 2 - 4 and answer the questions at the end.

BCA Decision A Contaminated Situation

On July 30, Irwin Jurkewiecz Corporation (IJC) and the National Weather Service (NWS) entered into a contract to "provide material, labor and supervision necessary for the demolition and removal of a generator/modulator building located at the Raleigh-DurhamAirport." The contract required that the work be completed by September 15.

The contract required, in part, that:

The work includes labor, material, and supervision to demolish and remove off site a Generator/Modulator Building (tower base concrete structure, approx. 19' x 19' x 10'), including excavation to remove the concrete piers and footings (4 ea. approx. 10' underground) and incidental related work. Remove electrical cables and conduit back to the power supply panel. Site shall be restored to match existing with 4" concrete pad reinforced with welded wire fabric 6x6-W2.9 x W2.9.

The contract also provided that regular working hours would consist of an eight-hour period established by the contracting officer's representative (COR), Monday through Friday. Work outside regular working hours required contracting officer (CO) approval.

Under the contract, IJC was required to use as common fill "approved unclassified soil material with the characteristics required to compact to the soil density specified for the intended location." For backfill and fill material, IJC was required to reuse excavated material.

The contract also required IJC to have a shoring plan prepared by a registered professional engineer licensed in the State of North Carolina. The purpose of the shoring plan was to provide protection for a nearby roadway. The plan was to be approved by the COR prior to the start of work. The COR eventually approved the shoring plan, as presented, with the exception of the stone proposed as backfill for the excavation. Under the proposed plan, the foundation corner anchors or piers were to be removed and the excavations backfilled with clean washed #57 or #67 stone. The COR initially called instead for ABC stone rather than washed stone and insisted that it be compacted. However, this change in the shoring plan was eventually withdrawn and IJC was directed to proceed with the shoring plan as submitted.

On September 24, the CO issued modification one to the contract that changed the completion date from September 15^th to November 4^th.

On October 21^st, the COR advised the CO, by written memorandum, that a representative of IJC had noted the presence of a pile of dirt on site and had asked permission to use it as fill at its convenience and at no additional cost. In his memorandum, the COR observed that the dirt was

previously purchased by the NWS as backfill to be used after the removal of an underground storage tank. The memorandum concluded that this was a matter to be directed to the attention of the Raleigh-DurhamAirport and which NWS needed to attend to before vacating the premises.

On November 6^th while excavating the last pier of four at approximately an eight-foot depth, IJC encountered contaminated material. Peter Kashulines, the contractor's site manager, notified the COR of this unforeseen condition. The COR, in turn, contacted the CO as to this discovery. The work condition was such that further excavation could not be done without further disturbing the contamination.

Mr. Kashulines asked the NWS to advise the contractor as soon as possible on action to be taken. The COR directed him to continue work on removal of the pier, to segregate the suspected soil from the original pile, and to keep the segregated soil covered and to consider it unsuitable for backfill.

IJC proceeded in removing approximately 25 to 30 yards of material suspected of being contaminated. At that point, they stopped work since the COR had provided notification that NWS had hired a "geologist" to take samples. This evaluation would determine the extent of the excavation required to remove all the contamination.

On November 8^th, samples of the suspected soil were taken for testing by the independent contractor. On November 11, the results were made available. The samples showed unknown low hydrocarbon contamination, possibly degraded gasoline and fuel oil. The independent contractor recommended that IJC finish its current tasks, that all excavated soil be piled as if it were contaminated soil, and that IJC proceed with the backfilling. The independent contractor noted that upon completion of the project, the horizontal and vertical extent of the petroleum contaminated soil could be tested through groundwater monitoring and soil borings and analysis.

On November 11^th, Mr. Kashulines tried to determine if IJC should continue work in view of the fact that the contaminated soil was said to be resting on top of one of the piers which was to be removed. He attempted to consult with the COR but was unable to find him. The COR's associate, however, recommended that IJC move the pile of contaminated soil to the parking lot and continue work. Thus, IJC proceeded with the work.

On November 11^th, the COR visited the work site but the contractor was not there. The "hole" was already closed without an opportunity being afforded to verify that the work was completed.

On November 19^th, the COR accepted IJC's performance as complying with the contract.

Subsequently, IJC submitted a letter to the contracting officer to provide compensation for the costs of removing and replacing the contaminated soil ($20 dollars per cubic yard) and for the two and one half days of lost time incurred while waiting for the NWS to respond to the contractor's request for guidance on how to proceed ($1036).

The contracting officer issued a decision denying IJC's claim for the costs of removing and replacing contaminated soil, for the costs attendant to a delay of two and one half days, and for

the costs of removing an existing pile of soil. The cost of removing the soil was said to be part of contract performance since the soil had to be excavated to remove the concrete piers. Since the shoring plan called for backfilling with gravel, the cost of replacing the excavated soil was also seen by the contracting officer as included in the contract price. The claim of delay was denied as unsubstantiated

The contractor appealed this decision to the Board of Contract Appeals.

QUESTIONS

1. Identify examples of COR direction authority. For each example, did the COR exercise authority properly? (Explain)

2. Should the contractor be compensated for the following?

1. The costs of removing and replacing contaminated soil at $20 dollars per cubic yard. (Explain)

1. The delay and disruption costs associated with the 2 days of lost time incurred while waiting for the NWS to respond to the contractor's request for guidance on how to proceed. (Explain)

3 The term, "technical direction," is often used in COR appointment letters which identify the types of decisions that may be made by the COR under the subject contract.