Contract Kid on Tuesday, December 18, 2001 - 10:59 am:
I would like to know if and when it is appropriate to modify
contracts to reflect new or updated clauses in FAR and DFARS.
Should a contract be modified to reflect a new mandatory clause,
or one that becomes mandatory when updated? Or is this
unnecessary because the clause did not exist or did not apply to
the contract when it was awarded?
I realize this would be impractical for low-dollar contracts of
short duration, but what about about high-dollar contracts of
Is there a dollar or time-frame threshold for this? Does it
depend on the situation at hand? Is it up to the contracting
agency to decide this matter?
Dave Barnett on Tuesday, December 18, 2001 - 01:28 pm:
My experience has been that clauses which are updated after
an award do not apply to such in-place contracts. Go back to
your contract law courses, one of the six elements of a contract
is "certainty of terms", if the government could keep changing
the clauses of a contract, then how could one determine the
intent of the parties?
Dave Barnett on Tuesday, December 18, 2001 - 01:32 pm:
Of course, a supplemental agreement subject to negotiation
(including price, delivery) could always be considered.
But would you want to do that from the government's position?
joel hoffman on Wednesday, December 19, 2001 - 10:21 am:
We generally don't modify existing contracts to incorporate
updated or new clauses, unless the Legislation and FAC include
such a directive to apply to exisiting contracts. Most of the
time, there is some description of which contracts are affected
by the new or revised clause. happy sails! joel hoffman
Kennedy How on
Wednesday, December 19, 2001 - 12:28 pm:
It's been my experience that we only modify existing
contracts if the clause prescription requires it. There may have
been times where a new clause may be desireable (by either
party), but those are case-by-case decisions. I don't think I've
ever done the latter.
on Wednesday, December 19, 2001 - 12:34 pm:
A "contract" is an agreement that occurs at a particular
point in time. Clauses included in a contract are agreed to as
they exist at that time. Putting in a change to a clause in a
contract is the same as modifying any other term of the
contract, and invokes the same rights of equitable adjustment to
the other party.
Vern Edwards on
Wednesday, December 19, 2001 - 01:08 pm:
I disagree with you about the need for an "equitable
adjustment." What is needed is new consideration, not an
Equitable adjustment is a term of art that refers to an
adjustment based upon the effect of a change upon the
contractor's cost or time of performance, plus an allowance for
profit. See: General Builders Supply Co., Inc. v. U.S.,
187 Ct.Cl. 477, 409 F.2d 246 (1969):
"The concept of an 'equitable adjustment' has had a long history
in federal procurement, going back for about fifty years. See
United States v. Callahan Walker Constr. Co., 317 U.S. 56,
63 S.Ct. 113, 87 L.Ed. 49 (1942); United States v. Rice,
317 U.S. 61, 63 S.Ct. 120, 87 L.Ed. 53 (1942); Ribakoff,
Equitable Adjustments Under Government Contracts, in
Government Contracts Program, The George Washington University,
Changes and Changed Conditions 26, 27 (Gov't Contracts
Monograph No. 3, 1962). First used in the standard 'changes' and
'changed conditions' articles, the term has been taken over for
other clauses, such as the 'suspension of work' and
'government-furnished property' provisions. See J. Paul,
United States Government Contracts and Subcontracts 430
(1964). The consistent practice appears to have been that an
'equitable adjustment', as that phrase is used in these
articles, can cover an allowance for a profit on work actually
done, but does not encompass unearned but anticipated profits.
See United States v. Callahan Walker Constr. Co., supra,
317 U.S. at 61, 63 S.Ct. 113; Bennett v. United States,
371 F.2d 859, 864, 178 Ct.Cl. 61, 69--70 (1967); cf. Bruce
Constr. Corp. v. United States, 324 F.2d 516, 163 Ct.Cl. 97
(1963). This is far from an unnatural interpretation since, in
these clauses, the 'equitable adjustment' is usually tied by
express words to an increase or decrease in the contractor's
What is required is consideration, which is a different concept
than equitable adjustment. Consideration is something bargained
for in exchange for something else. It must be adequate, but it
need not be equitable. See Restatement, Second, Contracts
A contracting officer cannot issue a unilateral order to add a
new clause to a contract or update an existing clause. A
supplemental agreement is required. In order for the
supplemental agreement to be binding there must be an exchange
of consideration. Consideration need not reflect the impact of
the addition or update on the contractor's cost or time of
performance; it need not be equitable; it need only be adequate
to bind the parties.
Ron Vogt on
Wednesday, December 19, 2001 - 03:28 pm:
Actually, that brings up an interesting point. The UCC
(2-209) does not require modifications to be supported by
consideration. Of course, there still needs to be agreement, so
a unilateral modification without consideration would not work
(and of course, a unilateral change is limited to those changes
permitted by the FAR; anything else requires a bilateral
modification or supplemental agreement).
Therefore, if the government and contractor agree, and the
contract is one for the sale of goods, the contractor could
accept a change adding a new clause and do so without
Note also that I am taking as a 'given' that the UCC applies to
government contracts. How and when is a matter of much debate.
Nevertheless, the courts and boards have applied the UCC
to government contracts, so for purposes of this discussion, it
Vern Edwards on
Wednesday, December 19, 2001 - 03:53 pm:
I'm confused. Are you saying that the Uniform Commercial Code
governs Federal contracts? If you are, would you please cite
I know that the boards and courts have looked to the U.C.C. for
guidance, but the U.C.C. is a model code for adoption by state
governments. It has been adopted in some form by most states, I
think with the exception of Lousiana. It has not been adopted by
Congress for application to Federal contracts.
The modification of Federal contracts must be supported by
consideration. Do you have solid information to the contrary?
Ron Vogt on
Wednesday, December 19, 2001 - 06:00 pm:
I don't think I said anything like that. I simply said that
the courts and boards have applied the UCC to government
contracts in certain situations. For example:
Northern Helex Co., v. United States, 197 Ct.Cl. 118, 455
F.2d 546 (1972): "As always, the federal contract law we apply
should take account of the best in modern decision and
discussion." Padbloc Co. v. United States, 161 Ct.Cl.
369, 377 (1963). This court has explicitly recognized the
authority and relevance of the Uniform Commercial Code in the
field of public contracts, Everett Plywood & Door Corp. v.
United States, 190 Ct.Cl. 80, 89, 419 F.2d 425, 430 (1969),
as has the Second Circuit, United States v. Wegematic Corp.,
360 F.2d 674, 676 (C.A.2, 1966) (Friendly, J.). See, also,
Harry Thuresson, Inc. v. United States, Ct.Cl. 453 F.2d
1278, decided this day.
ABM/Ainsley Business Materials v. GSA, GSBCA 9367, 93-1
BCA 25,246 (applies UCC regarding revocation of acceptance).
As I said, the application of the UCC to government contracts is
complicated, so I just took it as a given rather than opening up
a whole new debate.
Let me turn your question around: does the FAR prohibit a
bilateral modification without consideration? I did a quick scan
of Part 43, and did not see any mandatory requirement for
consideration, although I admit it was a quick scan. In fact,
COs are permitted to add FASA and FARA modifications without
consideration (see 43.102(c)).
If there is a mandatory requirement in the FAR to get
consideration for all modifications, then I agree that the
application of the UCC cannot overcome a mandatory requirement,
and I retract my earlier post. If not, then my point is simply
that a contractor can agree to no consideration.
Vern Edwards on
Wednesday, December 19, 2001 - 08:05 pm:
The FAR does not prohibit a bilateral modification without
consideration. The FAR does not prohibit a contract award
without consideration. The FAR barely mentions consideration at
all. Do you thus conclude that consideration is not required for
the formation or modification of Federal government contracts? I
Consideration is a requirement of the common law of contracts as
applied to Federal contracting. See Cibinic and Nash,
Formation of Government Contracts, 3d ed. (1998),
Evidence that consideration is normally essential to contract
formation and modification are the facts that: (1) FAR 43.102(c)
mentions that FASA and the Clinger-Cohen Act "authorize but do
not require" contracting officers to modify contracts without
consideration in order to incorporate changes authorized by FASA
or Clinger-Cohen Act amendments into existing contracts, and (2)
FAR 50.302-1 prescribes special procedures for modifying
contracts without consideration as authorized by the Defense
Production Act. It clear from these passages that Congress
believes that modifications without consideration require
express statutory authority.
Numerous board and court decisions have taken note of the
requirement for consideration in support of modifications. In
1999 the Department of Agriculture Board of Contract Appeals (AGBCA)
held as follows:
"The authority of COs to enter into modifications or amendments
to contracts is limited to agreements based on new consideration
or benefit to the Government. See Beavers Construction Co.,
AGBCA No. 83-125-1, 84-1 BCA P 17,067, holding that there is no
authority to enter into modifications unsupported by the
framework of the contract or by any new consideration, and that
performance of pre-existing duty is not sufficient consideration
for a supplemental agreement."
See: Thomas B. Prescott, AGBCA No. 98-151-1, 00-1 BCA ¶
The Armed Services Board of Contract Appeals has found promises
to be unenforceable due to lack of consideration. See: Voices
R Us, ASBCA No. 51,026, 51,070, 98-1 BCA ¶ 29,660, in which
the board said: "Moreover, even if Mr. Patty's alleged promise
of payment were deemed to be admitted and ratified by the
contracting officer's failure to reply to VRU's letter of 2
December 1996, the promise is unenforceable for lack of
In Shipco General, Inc., ASBCA No. 32830, 90-1 BCA ¶
22,363, the ASBCA made this point:
"The contractor fails to recognize that but for two instances of
poor contract drafting by the Government, the termination for
default of that contract would never have been converted to a
termination for convenience. The first was failure to provide
for the incremental return of refurbished houses--the method
frequently used for renovation of housing--so that all of the
houses could have been delivered the last day of the contract...
. The second was failure to include any consideration for the
contract modification which established a completion schedule
for houses on a periodic basis."
I think that we can safely say that a modification of a Federal
contract must be supported by consideration to be enforceable.
on Thursday, December 20, 2001 - 08:03 am:
Back to the original question, I agree that generally a FAR
clause promulgated after award will not apply to (or be
incorporated into) the contract unless the FAR or underlying
statute permits/requires incorporation or the parties mutually
agree to do so (supported by consideration from the
party/parties benefitting from the incorporation). I would just
add that in some cases the exercise of an option is viewed as
tantamount to the award of a new contract (e.g., where the
option work would normally be competed but is added to the
contract IAW a sole-source justification). In such cases, a
mandatory FAR clause which is issued after the original award
but before the option exercise must be incorporated into the
contract when the option is exercised. Indeed, if the CO fails
to do this the clause will be read into the post-option contract
under the Christian Doctrine. There is case law on this, albeit
not very much.
Vern Edwards on
Thursday, December 20, 2001 - 09:22 am:
What's the case law?
joel hoffman on Thursday, December 20, 2001 - 10:48 am:
I have an example:
The Prompt Payment Act revisions of 1988 were made applicable by
operation of law "to all contracts awarded, contracts renewed,
and options exercised on or after April 1,1989." However, the
revised contract clauses were only published in the Federal
Register on March 31, 1989. We received implementing guidance
from Headquarters on July 2 of that year to unilaterally
incorporate the new clauses into the affected contracts by
administrative modification. We did. Talk about wailing and
gnashing of teeth by the affected contractors!!!! A couple gave
notice of intent to claim, but eventually withdrew them , after
the Christian Doctrine was explained to them. Of course, that
didn't make them any less mad.
I don't remember any contracts awarded prior to April 1, 1989
with subsequent options that were affected, so I don't know what
would have happened in that case - would we have had to
re-negotiate or provide consideration? I don't know. All I know
is we weren't provided any guidance other than "the operation of
happy sails! joel
Ron Vogt on
Thursday, December 20, 2001 - 10:50 am:
Vern, you have done a thorough job of finding cases that
address consideration, but they are not particularly relevant to
our scenario. In my original post, there were two key elements:
agreement, and Article 2 of the UCC, which means the sale of
In the AGBCA case you cited, there was neither. That case
involved a truck rental, and the claimant wanted (and the
government denied) a higher compensation than was in his
contract. In Voices R Us, the claimant alleged that the
CO had promised a partial payment before a line item was
accepted, which the government disputed; hardly a scenario
demonstrating agreement. As for the other cases, I don't have
access to them.
Furthermore, these cases involve a lack of consideration to
the government, for an alleged modification that would have
benefitted the contractor. Therefore, they could stand for the
proposition that the government cannot be held to an implied
modification (remember, there was no agreement) unless some
benefit flowed to the government.
In looking over my question to you (does the FAR prohibit...), I
realize that I should have asked a different question. You are
correct, there are lots of things that the FAR does not
prohibit, so that gets us nowhere. The question should have
been: does the FAR expressly require consideration for all
modifications? Again, my quick scan did not find anything, and I
suspect that someone would have cited it by now if it was there.
(As before, if there is such a statutory or regulatory
requirement, I will retract my comments and the debate is over.)
That leaves us with the case law. As you have pointed out, there
are cases that say consideration is required, but I don't find
those to be exactly on point. In fact, there may not be a case
on point, because it would require a scenario in which the
government and the contractor agree on a written modification,
and then one party tries to back out of it, claiming no
consideration. This is an unlikely scenario.
So how do you add a new or updated clause? I say go for it by
written, bilateral modification, making it clear that there was
agreement to the modification. If there is a later dispute, the
court should do as the Claims Court did: "As always, the federal
contract law we apply should take account of the best in modern
decision and discussion."
Vern Edwards on
Thursday, December 20, 2001 - 11:07 am:
I frankly find it amazing that anyone would suggest that a
modification of a Federal contract without consideration would
be binding in the absence of statutory authorization, a la the
Defense Production Act, FASA, or Clinger-Cohen. You have
provided absolutely no support for your contention other than
the fact that you have not been able to find a case which
strikes you as being on point. The cases that I cited to you
were on point; the fact that their factual backgrounds are
dissimilar to the problem at hand do not distinguish them in
It is clear to me that a CO has no authority to modify a
contract without consideration in the absence of express
statutory authorization to do so. I find your attempt to argue
to the contrary on the basis of the fact that you have not been
able to find what strikes you as a case on point to be entirely
without merit. Show me a case in which a board or a court has
said that consideration is not necessary to bind the parties to
a modification. Show me an authoritative statement to that
As far as I am concerned, the need for consideration to support
a modification is such a fundamental principle of Federal
procurement law that I am content to let you believe what you
like, and to act on your belief, without spending another moment
of my time trying to change your mind.
Ron on Thursday, December 20, 2001 - 06:30 pm:
I won't try to change your mind. In fact, I have always
respected your contributions to this forum. But I do have to
comment on a couple of your points.
First of all, the facts are exactly what make one case
distinguishable from another. Much of oral argument consists of
pointing out factual differences between cases so as to
distinguish why a rule of law should or should not apply to your
case. So when you say that your cases are on point - the facts
are just different, that's like saying your name is Vern - you
just pronounce it Eric (sorry, couldn't resist).
The cases you cited stand for the proposition that the CO has no
authority to modify a contract if there is no benefit to the
government. That's not quite the same thing as saying "a
modification must be supported by consideration." Under
traditional contract law, there must be consideration on both
sides. The UCC changed this by eliminating the requirement for
consideration in modifications. Since the cases say nothing
about requiring benefit to the contractor, I see no reason why
the UCC rule can't be applied.
Therefore, in response to the original question, if the new or
updated clauses benefit the government, and the contract is for
goods, I would say they can be added by mutual agreement and
nothing more. If the clauses benefit the contractor, the cases
you cite would require a benefit to the government as well
(which FASA and FARA waived for those changes). For non-goods
contracts, I would say that the common law requirement of mutual
consideration for mods would apply.
Vern Edwards on
Thursday, December 20, 2001 - 08:39 pm:
Well, I don't like to think that my mind can't be changed, so
I'm going to give you the chance to change it. As far as I can
tell, your argument boils down to this:
Since the U.C.C. does not require consideration in support of a
modification of a contract for the sale of goods, and since the
FAR does not state that consideration to the contractor is
required in support of a bilateral modification of a Federal
government contract for goods, it follows that no consideration
to the contractor is required to support the bilateral
modification of a Federal government contract for goods. Thus,
as long as the government receives consideration the parties
will be bound by the terms of the modification.
Is that a fair statement of your position? If not, please
correct me. If so, prove it. Show me a case in which a board or
a court has said that there need not be a mutual exchange of
consideration to support a modification and that cites the U.C.C.
or the lack of a FAR (or ASPR, FPR, or DAR) requirement as the
basis for its holding. If you can show me such a case, and the
more recent the better, I am prepared to change my thinking on
As an aside, if the modification benefits both parties, then
there has been a mutual exchange of consideration. We are thus
talking about a situation in which the modification benefits the
government but not the contractor.
I actually hope that you can change my mind, because then I will
have learned something new and very useful.
I want to advise you that I discussed this with Prof. Nash today
and he said that consideration is required. But he's only human
and maybe you can teach him something too.
on Friday, December 21, 2001 - 08:58 am:
Vern - I am the Anon 8:03.
Case law in support of the proposition I cited includes
Southeast Consortium for Int'l Devpt, ASBCA No. 35064, 88-2 BCA
20,735; Honeywell Federal Systems Inc., ASBCA No. 36227, 89-1
BCA 21,258; and Telesec Library Svcs, ASBCA No. 42968, 92-1 BCA
24,650. The Telesec decision includes the following language:
"Under 29 CFR sec. 4.143(b) and 4.145(a), when the Government
exercised the second option, it created a 'new contract' with
respect to the Service Contract Act and regulations relating
thereto. This new contract was effective 21 December 1989. Prior
to that date, new FAR regulations applicable to the Service
Contract Act had been implemented by FAC 84-46. We conclude
that, under FAR 22.1006, the contracting officer was required to
insert the new Price Adjustment clause, FAR 52.222-43, into the
third year option contract. Because the contracting officer
failed to do so, we further conclude that, under the Christian
doctrine, FAR 52.222-43 must be read into the contract by
operation of law. See Centel Communications, supra."
There is, however, case law to the contrary. SEe, e.g., IBM v.
US, 21 Cl. Ct. 743 (1990)(where obtaining an option is not the
primary purpose of the original contract, an option should be
treated as a continuation of the original contract).
By the way, although as noted in my originam message I agree
with your position on consideration, there is some authority to
the contrary. When the FAR replaced the DAR/FPR, the CAAC issued
guidance on what to do for contracts awarded under the FPR but
administered after the FAR was issued. The CAAC Chairman issued
guidance (Oct. 17, 1983) saying that, where post-4/1/84 options
were exercised in such contracts, the CO was supposed to apply
the FPR unless either (a) a new procurement or unpriced option
was involved (i.e., the situation I addressed in my earlier
message), or (b) the parties mutually agree to convert to the
FAR system. Alternative (b) would not appear to expressly
require consideration. Of course, a court or board might hold
that the consideration requirement is implicit, but that doesn't
look like what the CAAC guidance was trying to say. I'm not
aware of any cases on this.
Vern Edwards on
Friday, December 21, 2001 - 09:34 am:
Thanks for the cites. I'll check them out. They look
With regard to the consideration issue, I would say that when
the parties agree to add or update a clause (or convert to the
FAR system), and when each party considers the addition or
update to be for its benefit, then there has been a
bargained-for exchange, and thus the requirement for
consideration has been satisfied.
The more I think about it, the more it seems that the provision
in FAR 43.102(c), which authorizes COs to modify contracts
without consideration in order to incorporate FASA or
Clinger-Cohen changes, seems unnecessary. If the parties agree
that the changes are mutually beneficial, then haven't they
exchanged consideration? Haven't they exchanged promises?
The Restatement, Second, Contracts § 71, says, in part:
"Requirement of Exchange; Types of Exchange
(1) To constitute consideration, a performance or a return
promise must be bargained for.
(2) A performance or return promise is bargained for if it is
sought by the promisor in exchange for his promise and is given
by the promisee in exchange for that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal
If both parties promise to comply with the new or updated
clause, then haven't they made an exchange? I think so. That's
all the consideration they need.
on Friday, December 21, 2001 - 10:38 am:
Anon 8:03 again - I hate to be the fly in the ointment, but
I'm not sure I agree with your last statement. There are a
number of cases where boards have struck down mods for lack of
A mere promise to comply with a clause is, in my opinion, not
necessarily enough to constitute consideration. For example, if
I promise to give you $100 next Monday and you promise to accept
the $100, we have both made "promises" but there is no
consideration. If, however, your promise to accept the $100 is
coupled with something that benefits me in some way -- even if
only by constraining your action in a way I view as favorable to
me -- that constitutes consideration.
In the context of substituting one clause for another, I agree
that creative people can usually come up with some benefit to
both parties. But where they cannot, black-letter law says the
agreement fails for lack of consideration. A contractor's
promise to "comply" with a clause that benefits only the
contractor, and does not constrain the contractor's action in
any way, does not, IMHO, constitute consideration.
Again, however, I agree that in the "real" world, there is
almost always some benefit/constraint on both sides.
Vern Edwards on
Friday, December 21, 2001 - 11:11 am:
I think that a promise to comply with a clause is adequate
consideration as long as there is an exchange of some kind--a
Many clauses, probably most, require something of both parties.
For example, under the Changes clause the contractor promises to
comply with certain orders of the contracting officer and the
government promises to give the contractor an equitable
adjustment if the order increases the contractor's cost or time
of performance. Doesn't that strike you as a bargain. Wouldn't
you agree that if both parties found that clause to be
beneficial then their exchange of promises would constitute
Friday, December 21, 2001 - 11:54 am:
You have pretty much stated my position. I agree that the case
law requires there to be some benefit to the government, so
until the law changes, 2-209 will not replace consideration to
the government. As for the contractor, however, I think it's an
open question. There are no cases yet, but I think it could be
It appears you've answered your own challenge to me. I've said
that a modification by mutual agreement could be sufficient.
You've said it requires consideration, but that the mutual
agreement could be the consideration. Need we go further? After
all, my only point was that a simple modification adding new or
updated FAR clauses could be done by mutual agreement without
"the technicalities which at present hamper such adjustments."
(Comment 1 to UCC 2-209). Although we take different paths to
get there (me: no consideration; you: agreement =
consideration), we both appear to be getting to the same point:
a technical modification by mutual agreement.
Incidentally, modifications without mutual consideration
probably are not uncommon. Anon gave some good examples. Mods to
add clauses via the Christian Doctrine are not exactly a
bargained-for benefit to the contractor. Think also of all of
the no-cost or technical modifications that benefit one party
and the other agrees simply because it has no impact.
By the way, did Prof. Nash also opine that the courts would not
apply 2-209 in our situation?
This has been educational and fun. In case this is my last post
on this topic, Happy Holidays.
on Friday, December 21, 2001 - 11:57 am:
I agree completely. My point was that for those (admittedly
very few) clauses that benefit only one party, the party that
benefits from incorportion must do something more than merely
promise to comply with that clause. My apologies if it came out
differently than what I intended.
Vern Edwards on
Friday, December 21, 2001 - 12:25 pm:
I think you've postulated a very interesting idea--that a board
or a court would require consideration to the government but not
to the contractor, thus applying UCC 2-209 in a limited way. But
that seems an odd position, that consideration must flow to one
party but not to the other.
To the extent that you believe that a bilateral modification
would be binding on the basis of mutual benefit, we agree. But I
think that satisfies the requirement for consideration, which is
different than saying that no consideration is required.
I think the Christian Doctrine is a different problem. The
application of the Christian Doctrine to read a clause into a
contract is not a modification of the contract. I think that in
Christian Doctrine cases the boards and courts consider
themselves to be reading the contract as it actually is, rather
than modifying the contract. I do agree that many "no cost"
modifications, such as "no cost" extensions of the delivery
schedule, are probably modifications without consideration.
Prof. Nash did not say anything that I recall about the prospect
that the boards or courts would apply UCC 2-209. He simply said
that to the best of his knowledge none had done so. Nor did we
discuss the notion that the boards or courts would require
consideration to the government but not to the contractor.
In Formation of Government Contracts, he and Prof.
Cibinic discuss one 1966 GAO decision in which the Comp. Gen.
did not require consideration to a contractor and two Federal
Court decisions, one from 1952 and one from 1942, but I have not
read them yet. They do not seem applicable to our discussion.
They also mention three 1980s decisions in which the GSBCA
applied Restatement § 89 to permit modifications without
consideration to one party under certain common law
circumstances, but those are not applicable to our discussion.
The Prof.s do cite some cases in which boards have held that a
modification was not binding for lack of consideration. One of
them is a supply contract case in which the contractor agreed to
a $700 deduction for tendering nonconforming supplies and then
repudiated the agreement because it turned out that the supplies
were, in fact, conforming. The contractor claimed to have given
up something without getting anything in return, since the
government was already obligated to accept the supplies. The
board agreed and held that the mod was not binding "for want of
consideration." See: Hunt Building Marts, DOTCAB No.
69-6, 69-2 BCA ¶ 8042. I don't rely on it too much, though,
because it is so old.
It has been fun. Happy holidays.
Friday, December 21, 2001 - 02:47 pm:
I almost hate to do this, but I have to add one comment.
You've said it's an odd position to take to say that
consideration can flow to one party and not the other. Yet
that's exactly what 2-209 (and therefore the law in 49 states)
allows. It says that no consideration is required for a
modification, yet realistically, it will only apply to one
party. After all, why do a modification if there's no benefit to
joel hoffman on Friday, December 21, 2001 - 03:00 pm:
Can you please check your citation for IBM vs. U.S.? 21 Ct. Cl.
743 is a Stokely Van Camp Vs. U.S. case, beginning on page 731.
I don't know "beans" about the IBM case and want to look it up.
happy sails! joel
Vern Edwards on Friday, December 21, 2001 - 07:22 pm:
No problem. That makes sense.
joel hoffman on Friday, December 28, 2001 - 11:15 am:
To Anon 8:03:
On Friday December 21, you said ...
" There is, however, case law to the contrary. SEe, e.g., IBM v.
US, 21 Cl. Ct. 743 (1990)(where obtaining an option is not the
primary purpose of the original contract, an option should be
treated as a continuation of the original contract)."
I tried to check that case out. The citation is wrong or the
Case Title is wrong, because the cite refers to a "Stokely Van
Camp Vs. U.S." case. Can you please check your citation, again.
I want to review the IBM case concerning options for background
on another thread, discussing options. Thanks. Happy Sails! joel
on Wednesday, January 02, 2002 - 07:58 am:
Anon 8:03 here -
Sorry for the mistaken cite; it should have been IBI v. US, 21
Cl. Ct. 79 (1990).
joel hoffman on Wednesday, January 02, 2002 - 02:10 pm:
Thanks, Anon 8:03. Several other later cases agree with the
IBI reconsideration. happy sails! joel
on Monday, April 01, 2002 - 03:50 pm:
Here's an interesting variant on this thread, specifically
related to the Christian Doctrine.
I work for a federal contractor, and the FY2002 appropriation
for our largest customer agency contains language prohibiting
the agency from using FY2002-appropriated funds to pay salaries
of any individuals "via grants or any other extramural
mechanism" in excess of the Federal Executive Level I rate. The
legislative text makes no mention of intended effects on
existing contracts. No mention is made of whether the change is
intended to be prospective or retroactive.
Our customer agency is now issuing *unilateral* modifications
incorporating language into contracts signed prior to FY2002
that limit our employees' unloaded labor rates. Is this legal?
Has the Christian doctrine even been invoked to change the
fundamental terms of a contract retroactively? Doesn't this
violate the certainty of terms principle?
On a side note, would anyone make a case that procurement
contracts fall outside the scope of "grants and other extramural
Thanks for any advice anyone can offer!
John Ford on Tuesday, April 02, 2002 - 01:46 pm:
Congress tried something similar to this with regard to
executive compensation by placing a cap on the total
compensation of certain executives that would be allowable on
government contracts. This provision was retroactive by its
terms. General Dynamics challenged the retroactive application
of the statute based upon the Supreme Court's Winstar decision.
The ASBCA upheld GD and although the government initially filed
an appeal with the Federal Circuit, that appeal has been
Dave Barnett on Tuesday, April 02, 2002 - 02:34 pm:
Assistance or acquisition? See chapter 10 of the "Red Book",
page 10-6 (if I read the number right), Vol II for the
distinctions between grants, cooperative agreements and