ji20874

FAR 52.219-27 only applies to SDVOSB set-asides -- it does not apply to SDVOSB concerns outside a SDVOSB set-aside context.

FAR 52.222-46 applies if the contracting officer includes the provision in the solicitation. It is required in a solicitation for a non-commercial item contract as prescribed in FAR 22.1103 -- this includes a multiple-award IDIQ parent contract but not an order. It is not prescribed for a solicitation for any commercial item contract, but one supposes it may be included under FAR 12.301(e). For an order, the contracting officer establishes the procedures, either at the parent IDIQ contract level or at the order level. One supposes the clause may be used in a notice for an order under a multiple-award IDIQ contract. This means a contracting officer must think and must make a decision in the exercise of his or her discretion.

That citation gives zero authority for an equitable adjustment to the contract terms. It allows you to change the terms, with mutual agreement -- but it does not allow for the Government to make a unilateral change which then creates an entitlement to an equitable adjustment. I still think you should require the contractor to make its case for an adjustment in the contract's terms by pointing to a clause that provides for an equitable adjustment. The contractor will likely be unable to do so. Thus, there should be no talk of equitable adjustment. Rather, I think you should be working under the Disputes clause of your contract. You really should read it and require the contractor to follow it. Really, it seems to me that you're trying to resolve an issue in controversy (that term is defined in FAR 33.201). We cannot tell from your postings whether an injury occurred or whether there is any Government liability for said injury -- the mere facts you described do not prove any injury and do not establish any liability. But if there was injury and there is liability, you deal with it under FAR Subpart 33.2, Disputes and Appeals (see 33.204, which Carl already pointed to), not by any REA doctrine. Make the contractor prove the contractor's injury caused by the Government's action and make the contractor establish the Government's liability -- only then should you be talking how to compute the money amount of damages.

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.

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.

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.

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.

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.

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

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?

My recommendation: full speed ahead! Who makes the decision in your organization? Contracting officer? SADBUS? Someone else?

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).

General, What clause(s) in your contract will serve as the basis for the equitable adjustment(s)?

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.

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.

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.

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.

I agree.

Okay. All the earlier discussion about FFP or T&M contracts is irrelevant. We’re talking cost-reimbursement contract type. G&A is a cost (indirect instead of direct), and it is included in the contract’s estimated cost figure in a CPFF contract. And as I recall, G&A is above the line on the weighted guidelines worksheet. So I’m okay with using G&A to calculate the estimated cost which will be the starting point for the fee discussion. Travel administration costs probably should be included in the G&A pool for indirect reimbursement. But even in a CPFF contract, the parties can agree to fix or cap any cost element.

Well, if your office writes the contract, make sure you include text that puts full responsibility on the contractor, including that the contractor will indemnify and hold harmless the Government for all of its actions in handling, disposing of, or reclaiming the used oil.

My general philosophy is not to ask a question unless I can accept the answer. Are you okay with a NO answer? Okay, go ahead and ask -- you might get a YES, you might get a NO. You know your customer better that anyone here -- if doing the press release without their prior consent (even if not required by your agreement) will offend your customer, and if releasing the press release is something you want to do but you will be fine with not doing it, then go ahead and ask. Or, since your BOA is silent, doesn't that mean you are free to act?

Issue the press release. If the government wanted to restrict your ability to do press releases, it would have said so in the BOA.

Rather than looking for a citation that would expressly allow for the proposed modification, it might be better to look for a prohibition. If there is no prohibition, and it makes sound business sense, it should been seen as permissible, right? See FAR 1.102-4(e). Are we talking about the parties agreeing to modify a contract after acceptance has occurred? There is no prohibition. Somehow, and for some reason, it seems the 2015 contract is still open and has not been closed. If your agency will close that contract, you might solve the problem. Or, are we talking about circumventing competition requirements for new work? That’s an entirely different matter. If the new work really is new work (that is, is not within the scope of the 2015 contract or the competition for that contract), the proposed modification will have to comply with any applicable competition requirements.

------------------------------------------------------- ITEM SUPPLY/SERVICE QTY UNIT UNIT PRICE AMOUNT ------------------------------------------------------- 001 Data Package 2019 1 EA $10,000 $10,000 . Delivery: Jan 2020 OPTION ITEMS- 101 Data Package 2020 1 EA $10,000 $10,000 . Delivery: Jan 2021 201 Data Package 2021 1 EA $10,000 $10,000 . Delivery: Jan 2022 301 Data Package 2022 1 EA $10,000 $10,000 . Delivery: Jan 2023 401 Data Package 2023 1 EA $10,000 $10,000 . Delivery: Jan 2024 FAR 52.217-7, Option for Increased Quantity—Separately Priced Line Item . fill-in: JAN-OCT of the data package year