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About ji20874

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  1. General, The contractor has the burden of asserting a right to a change in the contract terms. Please read the Disputes clause of your contract. It sounds like your contractor has not convinced you of its entitlement to a change. Thus, you should reject its request. But there is no harm. If the contractor really thinks it has an entitlement, it can make its case in an updated request or in a claim. But you should not be talking amount (quantum) until after the contractor persuades you of its entitlement to a change. Don’t give the contractor more money unless it proves entitlement. You’re a general, not Santa Claus, and it is not Christmas.
  2. A truck is an item of supply. A contract for the purchase or lease of a truck is a contract for an item of supply. A transportation services contract where the contractor provides transportation services (driver, loaders, storage, weighing, routing, and so forth) in addition to a truck (which contractor employees drive, load, store, weigh, route, and so forth) is probably better characterized as a contract for a service.
  3. Yes, the FAR uses the term “equitable adjustment” extensively. As I recall, every single time the term is used in the context of a specific clause or circumstance. If the FAR does use the term generally, outside the context of a specific clause or circumstance, please point me to that usage. A change made by mutual agreement of the parties under para. (c) of the clause at FAR 52.212-4 is not an equitable adjustment. It is simply a change made by mutual agreement of the parties under para. (c) of the clause at FAR 52.212-4. If there is a contract clause that creates an entitlement to an equitable adjustment, the contracting officer should follow that clause in considering the equitable adjustment. That’s why I asked the original poster about the clause(s) that are in play. He or she should not even attempt to negotiate or grant an equitable adjustment unless he or she knows what clauses are in play, and then follows those clauses. If the original poster wants to give the contractor more money to settle a matter outside of any contract clause which creates an entitlement to an equitable adjustment and which, if left alone, might result in a claim under the contract’s Disputes clause, he or she may do so without calling the additional money an equitable adjustment.
  4. Carl, Right. However, one need not reach to 41 USC Chapter 67 to know that SCA/SCLS doesn’t apply to the original poster’s situation — he or she may instead simply look to FAR 22.1003-1.
  5. The original posting is about equitable adjustments, so it makes sense to ask about the clause(s) in the contract that provide entitlement to an equitable adjustment.
  6. It seems to me that one should decide that it is a service contract before deliberating whether SCA/SCLS applies. Answering the first question (is it a service contract?) as NO allows the original poster to proceed with the acquisition as a micropurchase. For the original poster, NO is a reasonable answer based on FAR 37.001. However, if one relies on something other than FAR 37.001 for the definition of a service contract, and answers the first question (is it a service contract?) as YES, only then does he or she need to consider the second question of whether SCA/SCLS applies. YES to the second question means the acquisition cannot be done as a micropurchase; NO means it can. Because I answer NO to the first question (is it a service contract?) based on the definition of service contract in 37.001, I don’t have to bother with the second question of whether SCA/SCLS applies
  7. I base my practice on the simple definition of service contract in FAR 37.101 — that’s all I need. And, for the question in the OP, that is all that matters. Please read it. As I said, to each his own, right?
  8. My recommendation: full speed ahead! Who makes the decision in your organization? Contracting officer? SADBUS? Someone else?
  9. You should negotiate a fixed fee that is fair under the circumstances. The fixed fee is a fixed dollar amount, not a percentage. Using percentages is just a way to get to the agreed-upon fixed dollar amount. The relative bargaining power of the parties will control who “wins” the negotiation, and once the negotiation is over, the percentage and the base of the percentage formula are irrelevant (except in some cases where statutory fee limits are stated as percentages).
  10. General, What clause(s) in your contract will serve as the basis for the equitable adjustment(s)?
  11. I agree with Jacques — flawed or sloppy logic won’t provide a reasonable expectation. But just answer the question, YES or NO, based on a reasonable survey of the marketplace. If your logic is sloppy, the GAO will tell you in the bid protest decision — if your logic is reasonable, you will win.
  12. One has to appreciate the difference between creating an obligation and recording that obligation. They are different — one happens in a contract, the other happens in the books of the agency. Once one understands the difference, he or she will be able to figure it out. Yes, it is very possible to create an obligation (such as by awarding an indefinite-delivery contract) and then to record that obligation without putting a funds cite in the contract — it happens all the time, legally and honorably.
  13. I disagree — but to each his own, right? In my contracting officer practice, a backhoe is an item of supply — purchase or lease, a backhoe is an item of supply.
  14. You do not do a set-aside of any sort unless you have a reasonable expectation of two offers from responsible small businesses and award at a reasonable price. Do you have this expectation? YES or NO. Do not agonize over this — just answer the question. It is simple.
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