Guam Contractors’ Association
Vol.54 Issue 11 NOVEMBER 2013
AROUND THE BENCH
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CONSTRUCTION NEWS BULLETIN
Awards Photo Highlights
your vision our reality At Hawaiian Rock Products, we are always ready to meet your construction needs. We have a fleet of over 200 construction vehicles and a workforce of over 300 employees. We operate state of the art facilities, strategically located throughout the island with the capacity to fulfill any project size requirements. Our vast fleet of equipment continues to expand along with the growing needs of the industry. We are here to provide you with the quality products and services you need, when you need them. 2008 Business Laureate
Building The Marianas Since 1958
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13-HRP-007 GCA â€œYour Visionâ€?
THEDIRECTORS PRESIDENT James A. Martinez, GCA PAST CHAIRMAN Robert Salas, Landscape Management Systems CHAIRMAN - ELECT Tom Anderson, Black Construction Corporation VICE CHAIRMAN - ELECT Art Chan, Hawaiian Rock Products SECRETARY/TREASURER John Sage, WATTS Constructors CONTRACTORS DIRECTORS: Narci Dimaoala, Amazon Construction Juno Eun, Core Tech International Tom Nielsen, Maeda Pacific Corporation Tom San Nicolas, dck pacific guam LLC John Robertson, AmOrient Contracting ASSOCIATE DIRECTORS: Paul Calvo, Calvo’s Insurance Underwriters Carlo Leon Guerrero, M80 Office Systems Inc. Patty Lizama, Pacific Isla Life Ray Yanger, Matson Navigation
THEEDITORIALS Guam Contractor’s Association (GCA) in conjunction with AdzTech and Public Relations, Inc. publishes the Construction News Bulletin (CNB) monthly. Reproduction of materials appearing in this publication is strictly forbidden without written permission by GCA. While we always strive for accuracy, we will from time to time overlook mistakes. In order to help us improve the quality and accuracy of this publication, we ask that you take the time to look at the information provided and notify GCA of any corrections as needed. Opinions and editorial content of this publication may not necessarily be those of the publisher, staff, GCA members, GCA Board of Directors and advertisers. For more information about advertising in the GCA Construction News Bulletin contact the advertising department at (671) 477-1239/2239 or email at firstname.lastname@example.org. Distributed to GCA members or can be obtained by stopping by the Guam Contractors’ Association office located at 718 N. Marine Corps Drive, Suite 203, East West Business Center, Upper Tumon, Guam. To find out more about how you can become a GCA member contact Guam Contractors’ Association at Tel: (671)647-4840/41 Fax: (671) 647-4866 or Email: email@example.com. www.guamcontractors.org Postmaster. Send address changes to Guam Contractors’ Association, located at 718 N. Marine Drive Corps Suite 203, East West Business Center, Upper Tumon, Guam.
Guam Contractors Association
THETEAM PUBLISHER: James Martinez SALES & MARKETING DIRECTOR: Geri Leon Guerrero AD SALES: Tom Mendiola PRODUCTION: Geri Leon Guerrero Christopher “Taco” Rowland PHOTOGRAPHERS: Christopher “Taco” Rowland EDITOR: Adztech CONTRIBUTING WRITERS: John Robertson David F. Macaluso
Dr.Noel Silan DPM, ABMSP P.C. Joseph Dimalanta, D.C., C.N.S.
Shawn Gumataotao Brian A. Darst Paul A. Debolt Keir X. Bancroft Nathaniel S. Canfield GCA STAFF: Francine Arceo Desiree Lizama
COVER: GCA EIC Overall Winner Black Construction & GCA COY Winner - dck pacific
SAME Monthly Membership Meeting October 17, 2013
Environmental Studies and Consulting Services
Each month, SAME Guam Post provides a guest speaker from local business to share who they are and their relationship with the island and surrounding areas. Last month’s key speaker was Myounghee Noh from Myounghee Noh & Associates, L.L.C. (MNA), to discuss some of the challenges in remote site work; specif-
environmental site assessments, soil and groundwater sampling, onsite chemical testing, site investigations and remediation among others. waste such as ploychlorinated biphenyls (PCB)-contaminated soil, electrical equipment containing PCB and
this size and in this location requires a well developed work plan, sampling and analysis plan, quality assur-
to be actively involved in the project.
Photos / Data courtesy of Myounghee Noh & Associates
and Aiea, as well as two other satellite locations in Georgia and Michigan. To learn more about Myoungee Noe & Associates, go to www.noh-associates.com. To join SAME Guam Post, log on to SAME.org and click on “Membership” at the top of the home page. 6 | NOVEMBER2013
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FUSO GCA RENTAL AD.pdf
Military, Government and Labor Relations Committee Update – November ‘13
Japan’s Prime Minister Abe Keeps Up Heat On China
By John M. Robertson
The need for a strong U.S. military presence in our part of the world continues to grow as the intensions of the Chinese military continues to be of great concern to the United States and its allies. The Japanese Prime Minister gave clear direction to his military leaders on Sunday 27th October on changes that are to be implemented to counter the threat that exists. Address-
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ing the nation’s military, including an elite unit tasked with defending its remote islands, Japanese Prime Minister Shinzo Abe vowed to keep in check territorial ambitions of other countries in a veiled warning to China for its maritime advances. “We will show our resolve as a nation, that changes in the status quo by force cannot be tolerated,” Mr. Abe told an annual review of the Self Defense Forces (SDF). “The security environment surrounding Japan has become more challenging. That is the reality,” he told the 4,000 or so SDF members gathered at a military base just north of Tokyo. While Mr. Abe did not mention China by name, the comment comes on the heels of similar warnings by the prime
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minister against Beijing’s territorial claims in waters around Asia, including one involving Japanese-controlled islands in the East China Sea. This is according to an article in the 29th October issue of the Wall Street Journal. In an interview with The Wall Street Journal, Mr. Abe urged China to act responsibly and not to resort to force, adding that other nations in the region shared this view. “Many nations expect Japan to strongly express that view. And they hope that as a result, China will take responsible action in the international community.” In the South China Sea, China is involved in disputes with many Southeast Asian countries, including Vietnam and the Philippines – see below.
In that Sunday’s parade, the SDF’s Western Army Infantry Regiment took part for the first time, a move seen as symbolizing Tokyo’s efforts to beef up its defenses in southwestern Japan facing the East China Sea. The members of the amphibious unit appeared on military vehicles towing rubber boats, reflecting their mission of protecting—and if needed, taking back—Japan’s remote islands. Also on display was an amphibious assault vehicle used by the U.S. Marines. The SDF’s elite force has been training with the American Marines, leading to speculation that Japan is looking to create its own, in addition to the three current SDF units, the army, navy and the air force. In addition to the confrontation over the East China Sea islands, Tokyo is increasingly becoming wary of China’s activities on the high seas. Chinese state media said the previous week that its navy started exercises in the western Pacific, attended by three of its fleets. Such moves have prompted calls in Tokyo for stepped-up surveillance. In July, Mr. Abe visited some remote islands in Okinawa, including one that serves as the center for monitoring activities in the East China Sea. The visit was criticized by Beijing as threatening the region’s stability.
Prime Minister Abe is doing more than just talking up plans to defend Japan’s territorial integrity. His government is expanding security cooperation with Russia. According to a 2nd November article in the Wall Street Journal, Japan and Russia agreed on Saturday 26th October to expand security cooperation, in the latest of a series of contacts between the two nations in the face of an increasingly assertive China. At the first-ever meeting of two countries' foreign and defense ministers, Russian Foreign Minister Sergei Lavrov and defense chief Sergei Shoigu held two days of talks in Tokyo to launch what are known as "twoplus-two" discussions with their Japanese counterparts, Fumio Kishida and Itsunori Onodera. The ministers said the new security cooperation, in addition to ongoing economic and human exchange programs, should help foster better relations between the two countries, which have had an oftenchilly relationship due to a territorial dispute left over from World War II.
The new signs of friendship will also likely send a signal to China, which is beefing up its military presence in the region and is itself involved in an increasingly testy dispute with Japan over that small group of islands in the East China Sea, as noted above. "As a seafaring country, maritime security is extremely important for us and today's agreement was made in a very timely fashion", Mr. Kishida said at a joint news conference. Russia and Japan have conducted joint naval exercises since 1998 but only for the purpose of cooperation in search-and-rescue operations. The Saturday agreement added countermeasures against terrorism and piracy. They also agreed to periodical mutual visits of defense ministers, along with the launch of a council on cyber-security. Japan hopes the talks will prompt China to reopen a window for dialogue. Chinese and Japanese leaders haven't met formally since Prime Minister Shinzo Abe took office in December last year, and Chinese
The Military, Government and Labor Relations Committee is open to all members of the association. Contact the GCA office for time and place of meetings.
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Mr. Abe told the troops that surveillance and patrols were needed to prevent “changes in the status quo,” in an apparent reference to the face-off between Japanese and Chinese vessels over the contested islands in the East China Sea. While Japan has the Senkakus, as it calls the islands, under control, China’s maritime agency ships are constantly in the nearby waters and often entering Japanese territorial waters insisting that the Diaoyu—its name for the islets—are its own. While the Japanese Coast Guard has been dealing with the incursions, some lawmakers have called for having an SDF presence on the islands. And Japanese defense officials are looking into the possibility of building new military facilities on nearby islands in Okinawa prefecture.
patrol vessels regularly enter what Japan considers its territorial waters around the disputed islands. A Japanese government official said that Mr. Onodera talked about Japan's recent relationship with China during the meeting, but said there was no comment from the Russian side. Japan also sought Russian understanding of Japan's security approach as a "proactive contributor to peace," which may include a revision to defense policies to include the right of collective self-defense. China and South Korea have criticized any such moves by Japan, which under present rules can respond only to a direct attack. There may become a need to amend the Japanese Constitution which was written after World War II by the occupying forces to preclude Ahead of the two-plus-two talks, the foreign ministers held a separate meeting, at which they agreed to proceed with peace treaty talks as soon as January next year. But it's likely the issue will take years to be resolved, as Russia wants to see greater economic investment from Japan in return. For Japan, Russia is the third partner for the two-plus-two framework after the U.S. and Australia. Russia has such relationships with the United Kingdom, the U.S., France and Italy. Mr. Lavrov said he invited the Japanese to Moscow for the next twoplus-two meeting, to be held as soon as next year. Islands in the South China Sea are also in dispute with China on the one side and several East and Southeast Asian nations on the other. Scarborough Shoal or Scarborough Reef, also known as Huangyan Island by the Chinese and Kulumpol ng Panatag in the Philippines is a shoal located between the Macclesfield Bank and Luzon Island of the Philippines in the South China Sea – see map. It is a disputed territory claimed by the People's Republic of China, Republic of China (Taiwan), and the Philippines. The shoal's status is often discussed in conjunction with other territorial disputes in the South China Sea such as those involving the Spratly Islands or the Paracel Islands. Since the 2012
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Scarborough Shoal standoff, access to the territory has been restricted by the People's Republic of China. The shoal was named after the East India Company tea-trade ship Scarborough which was wrecked on one of its rocks in 1784 with all lives lost. Mischief Reef, one of the Spratly Islands, currently falls under the political jurisdiction of the Peoples’ Republic of China. In 1994, the PRC built initial structures on stilts there while the Philippine Navy was not patrolling the area due to a monsoonal storm. Since the reef is just 130 miles (209 km) away from Palawan, well inside the Philippines' Exclusive Economic Zone (EEZ), the Philippines immediately protested this action. However, China rejected the protest and stressed that the structures were shelter for fishermen. In 1999, another wave of protests from Manila occurred when China added more structures which resembled military installations more closely than shelters for fishermen. Mischief Reef was discovered by Henry Spratly in 1791 and named by one of his crewmen. It has rocks above water at low tide and a lagoon. The Philippines alleged China's actions in South China Sea as part of China's "creeping invasion". The Philippines claimed that China had a well-rehearsed routine when laying claim to a new reef: first putting down buoys, then building concrete markers. Temporary wooden or bamboo shelters follow, and if China is still not challenged, the permanent military forts go up. The Philippines' decision not to destroy the Chinese structures on Mischief Reef prevented an escalation of the dispute. The Philippines claims that China has always been prepared for armed conflict when opposed, as is evident in China's defense of reefs from Vietnam in 1988 which resulted in more than 70 Vietnamese deaths. The Philippines decided not to attack since it could have led the two countries into war, the consequences of which could have escalated into a wider conflict. The Philippines is a military ally of the United States under treaty.
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Apart from the foregoing as background, Japanese Prime Minister Abe may have growing concern about the reliability of support from the United States should the security situation worsen – which is likely. More and more hot spots are emerging in various places around the globe, inspired primarily by followers of Al-Qaida. The agreement to realign U.S. military forces in the western pacific has not materialized according to plan. There is even uncertainty among some that it will happen any time soon in view of what is happening in Washington DC. The Congress is unable to pass a budget bill. The sequestration that all agree is a stupid and ridiculous way to settle differences, is still in place with devastating consequences on the military. Training is being compromised because of inability to fully fund critical items such as fuel for ships and aircraft as well as other essential expenses. The government had to be shut down for a period of time this fall because of the inability of various factions to compromise. For three years running, there has been an extended Continuing Resolution Agreement rather than a budget to authorize spending. The government continues to borrow money and go deeper into debt rather than establish a means for controlling cost and agreeing a balanced budget. Add to that the aggressive information monitoring of U.S. allies and others revealed recently by U.S. fugitive from justice Edward Snowden. The credibility of the U.S. governments’ ability to govern is being called into question by friend and foe alike as a result of these unsettling issues. The role of America as the one remaining superpower in the world could change if matters continue to degrade and that would be disastrous for America and the free world. A change in leadership in both houses of Congress and the White House appears to be the only answer. Even that cannot be relied upon to bring the best possible leaders into government. Meanwhile, we do know that Americans are a resilient people and will overcome whatever obstacles are placed in front of us.
Picking Up The Pieces After The Government Shutdown Understanding Your Contractual Rights To Relief For Delays & Disruptions Caused By The Lack Of Current Appropriations Brian A. Darst
For the second time in 18 years, the United States Congress and the President came to a political impasse, which has resulted in large portions of the Government furloughing nonessential personnel and suspending services to the public for the ﬁrst sixteen days of October. As a result of the Pay Our Military Act, the eﬀects of this shutdown were not quite as widespread as they were during the 19951996 budget crisis, since most Department of Defense (“DoD”) employees were called back to work around October 6, 2013. However, for many civilian agencies, as well as many contractors and subcontractors supporting the Government the eﬀects of even a partial shutdown were just as devastating. All this has left contractors and their subcontractors with a diﬃcult question—how do I go about picking up the pieces now that Congress and the President have agreed to a Continuing Resolution and the U.S. Government has reopened for business? This general guidance is intended to give you some idea as to the contractors’ rights vis-à-vis the Government under several of the more important Federal Acquisition Regulation (“FAR”) remedy granting clauses following the Government shutdown. With this in mind, the most important thing to remember here is that, the Government has no right to force a contractor to bear the brunt of any schedule or cost impacts caused by the partial shutdown. Nor may Government oﬃcials insist that a contractor pick up performance from where things left oﬀ on September 30, 2013, as if nothing had happened without aﬀording it schedule relief or, in some cases, an upward price adjustment to compensate the contractor for the adverse eﬀects that this partial shutdown has had on its performance. This is true for both civilian agencies and DoD, although the ultimate eﬀect on DoD contracts may be less than on civilian agency contracts.
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The adverse eﬀects of this partial shutdown have been felt in several diﬀerent ways. Some contractors were adversely aﬀected because their contract or task order awards were held up, options were not been exercised, and incremental funding was not provided to allow them to continue to perform work under existing contracts. Other contractors were been issued stop work orders by the Government, forcing them to either furlough their own personnel or continue to retain their workforce in an idle or less productive capacity while awaiting the reopening of the Government. Still other contractors were unable to deliver or be paid for services or supplies because their Government counterparts involved in the inspection/acceptance or payment processes were not available. In fact, in some instances, contractors working at federal facilities were forced to seek alternative places of performance because they had been barred from access those facilities. In short, the ripple eﬀects of this partial Government shutdown were seen felt the board. While the most immediate eﬀect were felt by those contractors having incrementally funded contracts, time & materials (“T&M”) contracts and labor-hour (“L-H”) contracts, the eﬀects of the partial shutdown also were seen in some ﬁxed price type contract vehicles as well. If, as a contractor, asked to sign some sort of “no cost” bilateral modiﬁcation or similar modiﬁcation asking you to waive your rights to obtain further relief resulting from this partial shutdown, think very carefully before you sign that modiﬁcation. Execution of a bilateral modiﬁcation could extinguish a contractor’s rights to further schedule or cost relief under any of the clauses discussed below. Remember that the Government almost always has the right to unilaterally establish a new schedule or make other unilateral changes within the scope of the Changes clause. In almost all cases, the contractor must perform as directed, but nothing
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in the FAR would require a contractor’s assent if it believes that it is entitled to additional compensation or other forms of relief under its contract or the law. Additionally, remember is that, while the FAR requires Government oﬃcials to incorporate certain remedy granting clauses that provide relief to contractors following award, if no contract has been awarded or if no option has been exercised, the Government is under no contractual obligation to reimburse a contractor for any work being performed during this shutdown. Nor is the contractor obligated to perform work for the Government. The same is true for contractors that are operating under incrementally funded or installment funded contracts. Until a modiﬁcation is issued to add funding to those contracts, once the current funding has been exhausted, a contractor performs work at its own risk. In a worse case scenario, a bid or an unexercised option may even expire during the shutdown, requiring Government oﬃcials to make some diﬃcult decisions about how to proceed that adversely aﬀects the contractor. Often times, once an anticipated contract or task order is awarded or a modiﬁcation is issued to increase the funding level of an existing contract, Government oﬃcials will recognize the allowability of pre-contract costs as well as those costs incurred before additional funding is added under a limitation of funds/limitation of cost type provision, like those appearing in FAR 52.232-7, 52.232-20 and 52.232-22. Indeed, contractors have sometimes been encouraged informally to continue performance during funding hiatuses in anticipation that an option will be exercised or additional funding is forthcoming after a budget or continuing resolution is passed. Other times, contractors mistakenly believe that they simply have to keep working in order to meet the due dates or other schedule constraints originally imposed on them by the contract. Continuing to perform under either scenario is very risky – especially in view of the uncertainty caused by the continuing lack of a formal
Now that this partial Government shutdown is at an end and a Continuing Resolution has been passed to allow Government to function once again – at least until January 15, 2014, many of the foregoing problems may be solved. However, it does not solve all of the problems created by the partial shutdown, especially for those contractors that received a formal stop work order, had their performance delayed or disrupted because of the partial shutdown, or were forced to incur additional costs that can be attributed to the furloughing of Government personnel or the partial Government shutdown. Those aﬀected contractors also have certain rights that should be considered as well. Speciﬁcally, all federal prime contracts include important remedy granting clauses from the FAR Part 52 that aﬀord contractors and, indirectly in some cases subcontractors, schedule and price relief that resulted from the Government furloughs of nonessential personnel and a temporary lapse in appropriations. After any stop work orders are lifted and/or the contractor is able to resume normal operations under its aﬀected contracts, it should consider these, as well as other remedy granting clauses in its contracts to determine whether it is entitled to schedule relief or an equitable adjustment to the contract price, or both. Three of the most important remedy granting FAR clauses that should be considered are discussed below. First, under the FAR’s standard “Default” and “Excusable Delay” clauses (FAR 52.212-4(f), 52.249-8, 52.249-9, 52.249-10 and 52.249-14), to the extent that the partial Government shutdown has caused a slippage in the contractor’s schedule, the contractor has a right to a schedule extension for every day of delay caused by the shutdown. Caution must be exercised because the notice requirements imposed on contractors diﬀer from clause to clause, but, in general, the Government must give contractors an extension in their performance schedules regardless of whether the delay was caused by
the Government acting in its sovereign capacity or in its contractual capacity. The Government does not have the right to refuse such a request if properly supported by evidence establishing causation and resulting impact. As such, if a Government oﬃcial insists that you begin performance as if nothing has happened or threatens default unless you complete performance by the original due date, remember that you have certain rights under this group of clauses. The points that a contractor must be prepared to show in any request for a schedule extension are (1) that the schedule delay was primarily caused by some action or inaction on the part of the Government and not based on some other intervening action, and (2) that the number of days being requested is directly related to those actions. If the delays are the result of anything other than a Governmentcaused event, these clauses would not give the contractor any right to a schedule extension. Moreover, if concurrent delays exist, you may have to conduct a more detailed analysis of the schedule slippage to establish whether the Government or some other event was the principle cause for each day’s delay. Second, under the FAR’s “Stop Work” or “Suspension” clauses (FAR 52.242-14, 52.242-15, 52.242-17), contractors are entitled to both an extension of time and also monetary relief for any delays or disruptions caused by actions of the Government acting in its contractual capacity. Additional costs resulting a delay can take many forms, including but not limited to: (1) idle employee/cadre costs, (2) the costs of locating an alternative place of performance if you have been barred from a Government facility during the shutdown, (3) expedited material delivery costs, (4) higher costs of materials/supplies that you were delayed in ordering due to the shutdown, (5) re-sequencing of work to address schedule impacts, and (6) even other delays which ripple from this stoppage such as seasonal construction eﬀorts, ship availabilities, cross-contractual impact where you are being aﬀected by another contractor’s eﬀorts (e.g., labor stacking), etc. This could consist of not only the prime contractor’s costs, but also additional costs incurred by its subcontractors that are passed along to the contractor in the form of a subcontractor claim. The only limitation is that some of these clauses do not allow
the contractor to recover additional proﬁt, but they would allow the contractor to recover both direct and indirect costs, including, in some cases, Eichleay damages for unabsorbed home oﬃce overhead costs. Third, under the FAR’s “Changes” clauses (FAR 52.243-1 through 52.243-7), a contractor has a right to schedule relief and/or recovery of additional costs to the extent that the Government issues some form direction that changes its contractual obligations and that impacts schedules/performance costs. Compensable changes consist of either an express change or constructive change to the contract. Importantly, unlike the suspension of work clauses discussed above, reasonable proﬁt is recoverable in addition to any direct and indirect costs resulting from the change. The FAR’s “Changes” clause may come into play one of two ways after the shutdown is over – (1) through some direction, action or inaction on the part of an authorized Government oﬃcial that changes the contractor’s existing obligations requiring more time/money to perform, or (2) a “constructive acceleration,” change in which the Government refuses to grant the contractor schedule relief under the “Default” or “Excusable Delays” provisions discussed above and insists that the contractor complete the project by the original due date for completion of the contract. These are only some of the FAR clauses that exist that may aﬀord relief to those contractors that have been adversely aﬀected by the Government shutdown. Depending on your contract, other clauses may provide similar forms of schedule or monetary relief. In addition to the foregoing, remember that, if a contractor is not paid by the Government in a timely manner, it may also be entitled to Prompt Payment Act interest under FAR Subpart 32.9. This section of the FAR, and its implementing clauses, gives prime contractors the right to simple interest on invoices that are not paid by the due date established in the contract (and in the case of construction contracts, progress payment requests). If the principal amount and interest is not automatically paid within the time established by these regulations, the Government must also pay an additional prompt payment interest penalty equaling the value of the interest due up to another $5,000 per late payment. No action
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appropriations act and sequestration. Without contractual coverage, the contractor is working at your own risk, and the Government may or may not recognize such costs for these eﬀorts. Ultimately if no contract is awarded, no option is exercised, or additional funding is not provided, a contractor is unlikely to recover any of its costs.
should be required on the contractor’s part to be entitled to interest, but to be entitled to the penalty, contractors do have to submit a written demand under FAR 32.907. Keep in mind that the Prompt Payment Act will not require payment of interest unless the invoice is properly executed and submitted or if there is some legitimate dispute over the quality of the services or supplies in question. However, it can be used if the reason for nonpayment or late payment is due to the Government’s inability to meet its obligations due to the furloughing of those Government personnel responsible for approving or processing the payment request. Contractors may attempt to obtain schedule relief or other form of equitable adjustment using all or any combination of these or other FAR-based clauses if they can establish the elements of proof required by the clause in question. Whether the contractor received a formal Stop Work order, or whether its performance was negatively impacted in other ways because of the absence of Government personnel needed to perform its obligations, these clauses can be used eﬀectively to defray
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some of the additional costs and schedule impact that were beyond the control and without the fault of the contractor. However, keep in mind that, while the contractor may have a reasonable time following the resumption of work to submit a claim or Request for Equitable Adjustment (“REA”), care must be taken to comply with all required notice requirements in the applicable clauses. These notices diﬀer from clause to clause, but generally must be in writing and must be submitted to the contracting oﬃcer to preserve the contractor’s right to ﬁle a subsequent REA or claim. In some cases, the contractor’s ability to recover may be limited to costs incurred no more than 20 days before it notiﬁes the Government’s contracting oﬃcer of the delay or constructive change. Ultimately a contractor’s rights and obligations will vary from case to case, depending on a number of factors. These factors include but are not limited to:(1) the agencies with whom the contractor does business, (2) the type of contract involved, (3) which clauses appear in the contract, and (4) the type of services or supplies being provided. It may be necessary to submit a formal REA or claim under the Con-
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tract Disputes Act and FAR 52.233-1 to obtain relief. Nevertheless, the foregoing are some of the most important remedy granting provisions of the FAR that give contractors a legal right to relief against the U.S. Government that should not be overlooked. While the foregoing cannot substitute for legal advice, it is hoped that this will alert you to your rights, as contractors, so that if and when you are confronted with a decision as to how to go about picking up the pieces after the recent shutdown is at an end, you can make those decisions armed with the knowledge you have certain contractual rights against the U.S. Government.
Brian A. Darst is of counsel to the Fairfax, Virginia, law ﬁrm of Odin, Feldman & Pittleman, P.C. where he specializes in U.S. Government Contracts law. He represents several prime contractors and subcontractors located on Guam and, in the past, has conducted seminars on federal contracting matters for the Guam Contractors Association.
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MONDAQ United States: New SBA Regulations Address Multiple Award Contracts
Small business Small business
MAC Awardee Small business
by Paul A. Debolt, Keir X. Bancroft and Nathaniel S. Canﬁeld
Any contractor performing under a multiple award contract (MAC), including an IDIQ, a GSA Schedule Contract, a GWAC, or a multiple award task or delivery order contract, should be aware that small business regulation of such contracts will change drastically because of a recent rule by the Small Business Administration (SBA). These changes will go into eﬀect on December 31, 2013. Highlights from the new rule appear below. 1. Agencies may set aside portions of their MACs for small businesses by: *Establishing partial set-asides based on CLINs; *Reserving awards for small businesses when speciﬁc task order requirements are not clearly deﬁned; and *Setting aside orders. 2. NAICS codes must be assigned to all MACs and orders issued thereunder. *A single NAICS code must be designated for each order issued under the MAC. *The agency will receive small business credit only if the small business receiving an order is small under the NAICS code assigned to that order. 3. The rule clariﬁes size determination requirements. *Small businesses must certify size status in accordance with the NAICS codes assigned to the MAC. *For a MAC, self-certiﬁcation is at the time of initial oﬀer, including price. *For BPAs, basic agreements, or basic ordering agreements, size determinations apply at the time of the response to the solicitation; but small business credit is applied only if the small business qualiﬁes as small at time of an order. *Recertiﬁcation requirements apply if a small business itself acquires another business, or is acquired, or is part of a joint venture involved in a merger or acquisition. 4. The rule clariﬁes Limitations on Subcontracting (the 50 Percent Rule) and the Nonmanufacturer Rule. *Under a set-aside MAC, the 50 Percent Rule and Nonmanufacturer Rule apply to the base period and each option; the contracting oﬃcer reserves discretion to require compliance at the order level. *Under a MAC subject to small business reserve or set-aside of orders, the 50 Percent Rule and Nonmanufacturer Rule apply at the order level.
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*The SBA may allow 8(a) small businesses' compliance to be measured every six months. *Compliance with the 50 Percent Rule will be evaluated as part of an oﬀeror's past performance. A contractor's failure to comply with the Rule can trigger a termination for default. *These changes do not reﬂect changes to the 50 Percent Rule issued in the 2013 National Defense Authorization Act for FY 2013. 5. Consolidation and Bundling *Consolidation applies to contracts in excess of $2 million, reﬂecting two or more requirements previously provided under multiple contracts, and requires approval by senior agency oﬃcial. *Bundling is a type of consolidation unsuitable for small businesses, but suitable for small businesses participating in a Small Business Teaming Arrangement (SBTA). The rule requires 30 days' notice of the agency's rationale for bundling on the agency's website. 6. SBA Procurement Center Representatives (PCRs) will work with agencies to ensure compliance. The SBA's rule changes give agencies tools to ensure that small businesses are included in multiple award contract procurements, and set forth the manner in which small businesses can compete for those contracts. As with the business size and status integrity regulations previously addressed by Venable's Government Contracts Practice Group, these regulations implement provisions of the Small Business Jobs Act of 2010 (Jobs Act). A more detailed analysis of the rule is provided below.
Agency Tools for Making Awards to Small Businesses under Multiple Award Contracts The new rules apply broadly to multiple award contracts, which the SBA has deﬁned as: *A Multiple Award Schedule (MAS) contract issued by the General Services Administration (GSA) or any agencies granted MAS contract authority by GSA; *A multiple award task order or delivery order
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contract, including governmentwide acquisition contracts; or *Any other indeﬁnite-delivery, indeﬁnitequantity contract entered into with two or more sources pursuant to the same solicitation. The rules provide three means by which agencies can ensure that small businesses are included in multiple award contract procurements: partial set-asides of contracts, reserves of awards, and set-asides of orders.
Partial SetAsides of Contracts An agency may make a partial set-aside of a contract when two conditions are met. First, the acquisition can be broken into smaller, discrete portions, such as by contract line item number (CLIN), special item number (SIN), or functional area (FA). Second, the "rule of two" will not be met for the whole acquisition, i.e., there is not a reasonable expectation that the contracting oﬃcer will obtain oﬀers from at least two small businesses, and the award will be made at a fair market price. Third, the "rule of two" can be met for some of the smaller, discrete portions of the contract. If those conditions are met, the contracting oﬃcer will issue the solicitation as a partial set-aside, and orders placed against those portions of the contract that were set aside will be competed only among the small businesses that were awarded the setaside portions of the contract. Notably, there is no requirement that small businesses make an oﬀer on the non-set-aside portion of the contract in order to compete on the set-aside portion, which is a departure from previous rules under the FAR. Small businesses may still compete for the non-set-aside portion of a multiple award contract with a partial set-aside, though, as the contracting oﬃcer may state in the solicitation that small businesses can compete against all oﬀerors on the non-setaside portion of the contract.
Reserves of Awards When an acquisition cannot be broken into
First, if market research shows that two or more awards can be made to small businesses that can perform part, but not all, of the requirement, the contracting oﬃcer may issue the solicitation as a small business reserve. If the "rule of two" is satisﬁed for an order placed against the contract, the order is competed solely among the small businesses that participated in the reserve. Second, if market research shows that at least one small business can perform the entire requirement but there is no reasonable expectation of receiving at least two oﬀers from small businesses at fair market prices, the contracting oﬃcer may also issue the solicitation as a small business reserve. Orders placed against the contract may be issued directly to the one small business awardee. Finally, on a bundled acquisition, if market research shows that the "rule of two" will not be met for the entire requirement and that no small business can perform the entire requirement due to the bundling, the contracting oﬃcer may issue the solicitation as a reserve for a small business teaming arrangement (SBTA), and issue an award to an SBTA. Orders placed against the contract are competed among all contract awardees. Under the new rules, a contracting oﬃcer making use of a reserve for a multiple award contract is permitted, but not required, to set forth targets for the dollar value of reserves under the contract.
Set-Asides of Orders When an agency awards a multiple award contract pursuant to full and open competition, without making use of a partial set-aside or a reserve, the new rules also permit the agency either to commit to setting aside orders or to preserve its right to consider setting aside orders placed under the contract. When making use of this tool, the contracting oﬃcer must state in the solicitation whether orders under the contract will be automatically set aside whenever the "rule of two" is satisﬁed for that order, or if the agency simply preserves the right to set aside such orders.
SBA also harmonized the use of set-asides for orders placed under GSA MAS contracts. For acquisitions below the simpliﬁed acquisition threshold, the agency ﬁrst applies the "rule of two" to determine whether a set-aside of orders is appropriate. The agency then surveys or requests quotes from three schedule contractors through GSA Advantage!, in accordance with FAR requirements. SBA notes that the agency can request quotes from more than two small businesses in that instance. The agency would follow much the same process for acquisitions above the simpliﬁed acquisition threshold, ﬁrst applying the "rule of two" and then providing the request for quotes to as many schedule contractors as practicable.
claims small business contracting credit for an award to a business that qualiﬁes as small under some of the NAICS codes assigned to the contract, but not to the NAICS code that was assigned (or should have been assigned) to the order.
While agencies are required to consider use of these tools in awarding multiple award contracts, there is no order of preference speciﬁed in the new rules. If an agency decides not to use a partial contract set-aside, reserve, or set-aside of orders with respect to a multiple award contract, however, it must explain its decision and document it in the contract ﬁle.
The new rules align the timing of size determinations for multiple award contracts with current SBA regulations, providing that size determinations for multiple award contracts are made at the time a business self-certiﬁes as part of its initial oﬀer including price. Where a multiple award contract has been assigned multiple NAICS codes, if a small business seeks to compete for task orders under the entire contract, the business must certify its size status with respect to each NAICS code assigned to the contract. The business will be considered small for the corresponding NAICS codes for the life of the multiple award contract, unless the contract has a term greater than ﬁve years. In that case, the contractor must recertify its status no more than 120 days prior to the end of the ﬁfth year or prior to exercising any option thereafter. Where a contractor has certiﬁed its size upon making an oﬀer on a multiple award contract, the contracting oﬃcer may require recertiﬁcation for each order placed against the contract, but that authority is discretionary.
NAICS Code Assignments To achieve greater accuracy in how NAICS codes are assigned to multiple award contracts and orders, as well as in corresponding agency credit for small business contracting goals, the new rules provide guidance to contracting oﬃcers with respect to NAICS code assignments. The new rules require assignment of NAICS codes to all multiple award contracts and orders thereto, which is in line with SBA's current regulations requiring every contract and order for a longterm contract to be assigned a NAICS code. If all of the orders issued against a multiple award contract can be classiﬁed under a single NAICS code and corresponding size standard, the contracting oﬃcer simply assigns that NAICS code to the contract. If no single NAICS code applies, the contracting oﬃcer can apply multiple NAICS codes only if it can divide the contract into discrete categories, such as by CLIN, SIN, or FA. In that case, the contracting oﬃcer assigns a single NAICS code to each discrete category, and orders placed against each category are assigned the same NAICS code as that given to the category. The SBA explained that this rule is designed to eliminate situations it has observed where an agency assigns multiple NAICS codes to a multiple award contract, and the agency
Where an agency can issue an order against multiple categories on a multiple award contract, such as with a GSA MAS contract, the new rules require the contracting oﬃcer to select the single NAICS code from the contract that best represents the principal nature of the acquisition for that order, which usually is the component accounting for the greatest percentage of contract value.
The new rules also clarify the size determination regulations that apply when a small business is part of a merger or acquisition. The new rules make clear that recertiﬁcation of size status is required not only if a small business is acquired, but also if a small business acquires another concern. Recertiﬁcation is also required when a participant in a joint venture is involved in a merger or acquisition, which can aﬀect the joint venture's status. For example, if a small business in a mentor-protégé joint venture is acquired and becomes other than small, the joint venture will not be considered small from that point forward.
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smaller, discrete portions because requirements cannot be clearly identiﬁed until individual task orders are drafted, an agency may reserve awards for small businesses. Reserves of awards apply in three diﬀerent scenarios.
With respect to agreements, such as blanket purchase agreements (BPAs), basic agreements (BAs), or basic ordering agreements (BOAs), the new SBA regulations state that size determination is made at the time of the response to the solicitation for the agreement. Because agreements are not contracts under the FAR, however, an agency may only count an order awarded under an agreement toward its small business contracting goals if the awardee also qualiﬁes as small at the time the order is placed. There is an exception to the general rule in the case of BPAs issued against GSA MAS contracts. In that case, size will have been determined at the time of the oﬀer on the contract, and the SBA therefore does not believe that size needs to be determined upon issuance of the BPA. Finally, the new rules address agency tools for on -and oﬀ-ramping contractors. While the proposed rules contemplated mandatory oﬀ-ramping of a small contractor on a set-aside multiple award contract that becomes other than small, the ﬁnal rule left the use of this tool to the discretion of the contracting oﬃcer. With respect to all multiple award contracts, therefore, the new rules provide that the use of on- and oﬀ-ramping is at the agency's discretion. Where an agency has set aside orders for small businesses, however, a business that has recertiﬁed as other than small will not be eligible to compete for those orders.
Subcontracting Limitations and the Nonmanufacturer Rule The ﬁnal regulations set forth the criteria by which small businesses will be judged to be in compliance with the 50 Percent Rule and the Nonmanufacturer Rule. Under a set-aside multiple award contract, a contractor must meet the limitations on subcontracting and satisfy the Nonmanufacturer Rule in each period of the contract, i.e., during the base period and each option period. By contrast, compliance at the order level is required for multiple award contracts subject to a reserve or set-aside of orders. The ﬁnal rule also gives contracting oﬃcers the discretion to require compliance at the order level for set-aside multiple award contracts. With respect to 8(a) business development participants, the SBA has retained the rule that permits the SBA to waive the orderbyorder compliance requirement, instead allowing
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compliance to be measured against all orders issued during a six-month period under certain conditions. The SBA retained this exception because the 8(a) program is a business development program, and the SBA conducts annual reviews of participants to assess compliance. A contracting oﬃcer must document a business's compliance with the 50 Percent Rule and the Nonmanufacturer Rule as part of the business's performance evaluation, and that information accordingly is made available on the Past Performance Information Retrieval System. Thus, a contractor's compliance with these rules will aﬀect the evaluation of its past performance when competing on future procurements. Furthermore, failure to comply with subcontracting limitations can result in actions by the contracting oﬃcer such as a cure notice, a show cause notice, a termination for convenience, or even a termination for default.
Consolidation and Bundling As deﬁned under the new rules, a consolidation occurs when there is a solicitation for a single contract or multiple award contract with a total cost in excess of $2 million, which is to satisfy two or more requirements that were previously provided under two or more contracts, each of which was lower in cost than the consolidated contract. A procurement is also considered to be consolidated if it is for a single contract for construction at two or more discrete sites. The new rules place limits on when agencies are permitted to proceed with consolidated procurements, providing that they are permitted only if the agency's Senior Procurement Executive or Chief Acquisition Oﬃcer justiﬁes the consolidation by ﬁnding that the beneﬁts substantially exceed the beneﬁts of separate procurements - and identiﬁes the impacts of consolidation on small businesses. Bundling, under the new regulations, is a speciﬁc type of consolidation, wherein consolidation results in a contract or multiple award contract that is likely unsuitable for award to a small business because of the bundling of requirements, but may be suitable for award to an SBTA. Similar to the agency requirements for consolidation, an agency pursuing a bundled procurement must document the acquisition strategy, including a determination that bundling is necessary and justiﬁed when compared to the beneﬁts of using separate, smaller contracts. The new
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rules also require that the bundling rationale be published on the agency's website at least 30 days prior to issuing a solicitation, which is in line with Department of Defense policy for bundled procurements. Small businesses may form SBTAs to compete on bundled contracts without aﬀecting their size status for any other purpose. The rules require an SBTA to have a written agreement that the SBTA must submit to the contracting oﬃcer when submitting a proposal on a bundled contract. There is no limit to the size of an SBTA, but it must be composed solely of small businesses, each of which qualiﬁes as small under the NAICS code assigned to the contract. The SBTA agreement also must set forth percentages or other allocations of work among the participants.
PCR Assistance In order to ensure agency compliance, the new rules set forth the SBA's responsibilities with respect to these provisions. The rules provide that the SBA's procurement center representatives (PCRs) must work at the earliest stage possible with the agency, reviewing acquisitions to ensure that the agency complies will all applicable statutory and small business requirements. For example, the PCRs will assist in identifying consolidated or bundled procurements, and encourage the use of setasides and reserves.
Implementation Recognizing that these new rules represent signiﬁcant changes to the way in which agencies engage in multiple award procurements, the SBA estimates that full, government-wide implementation may take up to ﬁve years and will require extensive retraining of acquisition personnel. Nevertheless, the new regulations provide powerful tools for agencies to ensure that small businesses do not get overlooked in multiple award contracts.
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Guam Airport g n i r a o S
into new horizons
by: David Macaluso
In New York City, the GIAA successfully sold $247.35 million in new revenue bonds which would be used to refinance existing debt at big savings. In addition, a portion of those funds, $125 million worth, will be used towards new capital improvements projects (CIP) for the Airport. The largest CIP would be for the new $54 million International Arrivals Corridor with Building Seismic Upgrades. This would be a third level glass exterior corridor, similar to the one in Houston or Tokyo Airports. This will allow passengers arriving on Guam to skip entering the concourse, they will be using a corridor outside and then they will come down from the third level, near gates nine and ten, using a newly built escalator and go straight into customs. The concourse will then be opened up, for outbound passengers only. The existing corridor on the second level will be removed, opening up everything and allow better efficiency to maximize all the gates. Currently the existing corridor prevents the airport from using all the gates, because there are flights arriving and departing, which ends up using the same area. This new third level corridor will make a better customer experience for traveling passengers who are either arriving or departing Guam. According to Guam International Airport Authority Executive Manager
In the past the Guam Power Authority has gone out and generated capital from the bond market to help build up the islands infrastructure. Taking their lead, back in late August, nearly one month before the new fiscal year, the Guam International Airport Authority (GIAA) did something very similar.
Charles “Chuck” Ada ll, currently there are vacant concession stands that are boarded up because they went out of business. “On the west side of the concourse, the majority of the passengers are inbound passengers and they don’t have time to buy anything because they are being corralled out of the airport, making room for the departing passengers. And the other passengers who are leaving may have already eaten at the food court, so with this new open space, it will allow concession stands to be more profitable like it was it the past,” Ada said. Another new project slated to begin will be to expand the holding bag screening location. The airport will relocate the bag screening machines to the back to allow more room for the customers. In the past, after you checked in, you would need to bring the bags you were checking in to the designated Transportation Security Administration (TSA) screening area, now this system will have TSA examine the bags in the back, which could decrease the passenger lines. This project will also upgrade the screening system to make it more efficient and to allow more counter space for airlines to rent. This CIP is valued at $26 million. The TSA Security Screening Checkpoint is the area you go through before you enter the concourse. The airport has plans to expand that area to the right and move the airport police office to another location. This will increase passenger flow and provide better customer service. Ada adds, “We believe the quicker we can get them to the concourse, we can generate more revenue because the
passengers may want to buy a drink, food or shop for a last minute gifts. We are hoping to have increased revenue from a lot of these CIP’s.” The airport also intends on replacing the current Flight Information Display system (FIDS). This is the computer system used to display all flight information to passengers about arriving, and departing flights and the location where you can retrieve your luggage. The price tag on this replacement is $5 million. Other items in this master upgrade are Integrated PLB Replacement ($8,200,000). Common Use Check-In Facilities ($2,800,000), Fuel System Improvements ($1,000,000), Parking
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Expansion ($7,400,000), ARFF Facility Replacement ($11,600,000), Cargo Apron Relocation ($7,700,000), Replace Terminal Seating ($3,500,000), Access Control and Security Improvements ($4,000,000), Terminal Flooring Replacement ($2,700,000), Upgrade Airport IT and FMS ($2,000,000), Route 10A Landscape Component ($1,700,000), Enclose Arrival Tunnels ($1,200,000), Replace Conveyance Systems ($2,600,000), Strengthen and Expand Curbside Canopies ($2,800,000), 1% Arts Program ($639,000) and Unencumbered Proceeds ($16,271,067). Current ongoing projects include the extension of runway 06L/24R, demolition of naval housing units and the former Guam Police Department records building, rehabilitate runway 06L/24R, install instrumental approach aid, noise mitigation measure for residences, improve utilities for sewer and stormwater design and environmental study, and improve airport utility infrastructure (electrical). Also on the airport concourse, Lotte is making improvements to a duty-free retail area at the GIAA which is estimated to cost $12.7 million. Part of the agreement is to renovate the retail areas along with renovations and upgrades to the restrooms on the concourse.
inside the airport that were cold and other areas where it was uncomfortable. Since the replacement of this entire cooling system, the airport is currently able to control the temperatures. It cost the airport close to $12 million for the entire system. Our power bill was about $6 million a year, but after this energy performance project we could save close to $2.4 million a year just on air conditioning and lighting. We are very pleased by that.”
Future of the Airport
Airports use to be built near cities, now they are becoming cities. Around the world airports began to focus on nonaeronautical operations and revenue growth. This could be the way of the future for airport operations, especially if there is a dip in the economy and there are less travelers.
While traveling, if you have a layover, people look for things to do or find different experiences at the airport. Usually a service that different at an airport, will make their customers talk about it and will set itself apart from other airports. When this happens travelers will be loyal. Ada feels if this happen on Guam, GIAA would be able pass some of its operational cost onto external companies, then the agency could pass its savings onto the airlines and passengers. This could eventually lead to reduced airfare for passengers who arrive to Guam or for islanders who travel to another destination.
“Last year when I was at the Orlando Airport, which is owned by the government, there was a mall, restaurants and even a supermarket inside it. They owned the land, so why not make revenue from it,” Ada said.
Recently Completed jobs
This past June, the airport upgraded and fixed its air conditioning system. All the cooling towers and the chillers were changed out and replaced. the lighting was changed to be more efficient and energy saving, a HVAC system (ventilating and air-conditioning system) was installed and it will all be connected to a Building Management System (BMS). The airport is the largest consumer of power for any single facility on island. And by replacing the air conditioning system and changing the lighting to energy efficient lights, the agency is saving money. According to Ada, in the past, when the airport was using the old cooling system, there were complains from DFS that their chocolate was melting in the stores. Ada said, “There were certain areas
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FUSO GCA Now on Guam AD.pdf
GCA Luncheon October 16, 2013 Westin Resort & Spa
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21st Annual GCA Family Day Picnic October 13th, 2013 Ypao Beach Park
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PHOTOHIGHLIGHTS 26 | NOVEMBER2013
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Saving $4 Billion by 2020 by Using Wireless Lighting Controls
By: Shawn Gumataotao A couple of local mid-sized corporations had asked me in recent weeks just how much savings can be achieved combining an energy efficient light bulb, like the Independence LED Lighting products we represent, and lighting controls in their respective buildings. I found the answer in a very unlikely place. San Diego, Californiabased ON World Inc., a provider of global business intelligence on smart technology markets in there recently published "Smart Building Wireless Sensor Networks found that wireless lighting controls in combination with energy harvesting, wireless mesh networking and wireless enabled smart LED drivers will save buildings $4 Billion in energy savings by 2020. “Today, a typical building wastes almost a third of its lighting energy due to inefficient or non-existent lighting control systems,” says Mareca Hatler ON World’s research director. “Wireless energy management systems that integrate with a building’s lighting infrastructure is one of the fastest growing areas in building automation.” ON World’s survey of 85 professional installers found that 59% are providing wireless lighting controls. Over half provide a centralized wireless lighting control system and about a quarter install lighting
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systems that use wireless adapters. Nearly 6 in 10 provide a wireless lighting control system that features occupancy detection, 34% day lighting and 26% support utility demand response programs. Maintenance-free wireless sensors and switches powered by harvested energy made up about 1 in 3 of the wireless lighting device shipments in 2012. Today, these mostly use the EnOcean wireless protocol that has over 1,000 interoperable products. Wireless mesh networking avoids dependence on a wired backbone that is used by the majority of wireless lighting control systems. Targeted at building-wide wireless energy management as well as outdoor commercial areas, wireless mesh systems attach to, or integrate with, lighting luminaires. Competition is increasing from system innovators such as CIMCON, Convergence Wireless, Daintree, Enlighted and TwistHDM as well as lighting manufacturers such as Acuity, Digital Lumens, Harvard Engineering, Hubbell, Light Corporation and Venture Lighting Corporation. The migration to LED lighting is one of the biggest developments in building energy management systems by providing long-lasting light sources that are especially suited for digital controls. Software configurable LED drivers with integrated wireless communications
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such as those provided by Orama promise to reduce communications costs up to 90% by replacing the need for a separate device for the adapter. Industrial, warehousing, parking garages/lots and outdoor area lighting are currently some of the fastest growing markets for wireless lighting controls. However, traditional commercial buildings such as offices, retail and restaurants will make up over 40% percent of the market by 2017. The ON World report noted that by 2020, global wireless lighting control device shipments will increase by over 1500% from 2012 when they will save buildings $4.2 billion in energy costs. Your mind made up yet? To learn more about the lighting controls products that GET, LLC provides, please check out our website at www.getguam.com or call us to discuss solutions for your important lighting needs-Made in America!!!
MYOFASCIAL TRIGGER POINTS Hi my name is Joseph Dimalanta and I am a both a locally licensed Chiropractor (D.C.) and licensed Certified Nutrition Specialist (C.N.S. with the Certification Board for Nutrition Specialists) on Guam. I will now be writing monthly for the Guam Contractors' Association Construction News Bulletin. I will be covering natural health care and numerous wellness topics. Feel free at anytime to email me with questions at firstname.lastname@example.org if you wanted a specific topic covered. For this month's column I will be writing about what exactly a lumbar support is and does.
This month's topic is Myofascial Trigger Points. So what is a myofascial trigger point? A Myofascial Trigger Point is an irritable spot that is found usually within a taut band of muscle. It may or may not be painful when it is compressed. Myofascial Trigger Points are graded on a four point scale with a grade of one being the least tender and four being the most sensitive and tender (and painful). When the trigger points are tender they can refer pain to other areas. For example, people who have tender trigger points in their upper posterior neck muscles (suboccipitals), may also have referred pain from that trigger point that not only exists in their upper posterior neck (where the trigger point exist); but the pain may radiate further up the head and to the top of one eye. Trigger points in different muscles may refer pain to other areas.
the quickest relief. It will also allow me to then work on the trigger point because prior to the injection it was probably too painful, tender, and severe. Other treatments that may help this condition include: acupuncture, physical therapy, massage, ice, specific stretching and exercise training, etc. This condition can also be aided with nutritional recommendations. Please see your Licensed Nutritionist or dietician for specific diet and nutritional recommendations.
Joseph Dimalanta, D.C., C.N.S.
So, how do you know if you may be suffering from a Myofascial Trigger Point? Try to notice if you have any painful areas or points on your body. Press on those areas and see if you feel a tender spot (also referred to a â€œknotâ€?) in those muscles. Try to see if these little knots are painful, tender, or sensitive when they are compressed. If they are painful, there is a chance it could be a myofascial trigger point but it could also be something else. To be safe, please get evaluated by your medical doctor or chiropractor. I use certain soft tissue techniques on trigger points that help relieve the tightness and tenderness of the trigger point. If a patient complains of a very severe trigger point (trigger points graded 4 out of 4), I will refer them to their medical doctor; and he or she may inject procaine or some other type of medication into the trigger point. In severe cases, this will probably give them 38 | NOVEMBER2013
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Diabetic Foot Surgery Vascular changes also occur in diabetic patients that alters the blood flow and ability to heal the wounds after surgery. Blood flow to the large and small vessels are consistently seen in the the diabetic patient. It is the blood flow to the large vessels which affects the patients wound healing. These type of patients will usually complain of cramps in the feet or calf with prolonged walking. The pain may be more stabbing in nature and if severe enough can even occur while the patient is at rest.
I’ve been asked many times by my patients on whether or not they can have surgery and there ability to heal afterwards. Diabetic patients are susceptible to many types of changes that lead to infections and foot problems that require foot surgery.
Pressure distribution changes. Due to the neuropathic changes, the propioception of the diabetic patient is altered. This leads to callouses, then if neglected ulcers to the feet. The impaired hydration and elasticity of the skin also adds to the formation or breakdown of the skin integrity. Charcot foot is the most severe form of which it is considered a neuroarthropathy. This leads to joint subluxations and large ulcers on the bottom of the foot. If not managed properly it may lead to amputations.
Neuropathic changes occur in diabetic patients that alters the sensation to their feet. Neuropathic changes also affect the hydration and elasticity. This type of patients usually may complain of numbness or tingling. It also alters the patients propioception and muscles which causes joint deformities. This all results into ulcers , infections and surgical amputations if not caught early.
If warranted I advise patients with certain foot types who are predisposed to infections to have prophylactic foot surgery to prevent infections. The surgeries are done outpatient and if selected properly can prevent ulcers which eventually lead to infections/amputations. These surgeries can prevent unnecessary hospitalizations, expenses and time out of work. It can also prevent higher
Dr.Noel Silan, DPM ABMSP
Guam Foot Clinic
amputations, expensive prosthetics and a lifetime of being in a wheelchair. Before any surgery careful preop planning is key. A medical clearance/EKG from your Primary Care Physician is key. Laboratory wise a fasting blood sugar, Chem 7 and CBC. Kidney function test is also key to knowing if certain medication dosages should be lowered or discontinued altogether. Serum albumin levels is also a good value to know for wounds that don’t heal. Patients with this conditions usually also have impaired kidney functions. Keeping well hydrated before and after the surgery is also key. Stopping or a decrease in smoking is also key. Anesthesia is also important in the selection of Diabetic surgery. I rarely perform diabetic foot surgery under general anesthesia. I do almost all my diabetic foot surgery under IV sedation. Majority of these patients have some form of neuropathy and general is not necessary. Also I perform all my surgeries early in the morning for the Diabetic patients. This helps in the management of their blood sugar especially after the surgery.
Express Med Pharmacy Bldg138 Kayen Chando St. Dededo, Guam 96929 • (671)633-3668 wk • (671)647-0027 fax Dr.Noel Silan DPM, ABMSP P.C.
D ia be t i c F o o t Prob l ems • Go u t • S por ts/W or k Related Injur ies • Skin Disea s es • Sur ger y
40 | NOVEMBER2013
CONSTRUCTION NEWS BULLETIN
Published on Nov 18, 2013
Guam Contractors' Assn. Monthly Construction News Bulletin is Guam's official construction news publication.