Jamaal Valentine

The OP was clear that the new work is in-scope, which means the OP presumably looked at the extent of any changes in the type of work, performance period, and costs between the modification and the original contract, as well as whether the original solicitation adequately advised offerors of the potential for the change or whether the change was the type that reasonably could have been anticipated, and whether the modification would materially change the field of competition for the requirement. Their concern appears to be their belief that adding work is not a change to the description of the services to be performed. Considering their question, do you agree with their belief and rationale stated above?

@ji20874 I believe the OP is (1) unclear on what constitutes 'changes' and (2) is worried about the FAR's use of change order (unilateral) and supplemental agreement (bi-lateral). Seems the OP wants help in determining if the new work (changes) should be issued pursuant to a clause -or- agreement of the parties modifying the terms of the contract. The OP stated that the new work is in-scope and doesn't provide any reasons for me to think this wouldn't fall under the changes clause. Regarding the use of a change order or supplemental agreement FAR 2.101 defines “change order” as: "a written order, signed by the contracting officer, directing the contractor to make a change that the Changes clause authorizes the contracting officer to order without the contractor’s consent." A forward priced/bilateral change order with a contractor's signature provides evidence of agreement, but seemingly remains a change order under the FAR-wide definition. FAR 43.103(a) & ( b )'s explanation regarding types of mods as bilateral or unilateral is descriptive rather than prescriptive. There is plenty of literature on bilateral change orders including Government Contract Guidebook by Steven W. Feldman or this online post (click here).

@Don Mansfield Thanks for the info. I should have said DAU requires stuff since my focus was them having requirements that can be used for training. For example, experiential learning can be incorporated into fulfilling real DAU requirements. Send students and instructors to the Army office(s) that buy for DAU similar to an extended acquisition workshop.

I have actually written an unpublished article on this. I believe most would agree that most career field learning occurs through hands-on learning, primarily on-the-job activities and training (e.g., experiences). Accordingly, DAU's teaching and learning model should be heavy with hands-on experiential learning. For example, clinics, externships, and simulations. Heck, DAU buys stuff, right? How about internships at DAU actually buying and administering supplies and services?

There is a lot of literature on this, but this Wiki entry provides a quick primer: Click here

I presume speed and innovation. I don't think so. However, the comment seems to suggest that the selection process is moot. The streaming and differentiated experience selectees receive may be what's important in cultivating speed and innovation.

Recently, the Deputy Assistant Secretary for Air Force Contracting stated that you can take a random group of contracting folks and put them in a 'cool kids' organization (e.g., SOFWERX, Kessel Run) and the outcomes would be the same. This made me think about a few things. First, I revisited senior leaders, auditors, taxpayers, and most importantly -- warfigthers -- recurring call for improvements in the defense acquisition workforces's professionalism, competence, acumen, savvy, etc. If a random group of contracting personnel can generate the same outcomes as those in high-performing and innovative organizations, what is the secret and how can we get the same or similar results across the enterprise? When I look around and identify non-specialists (practitioners) from specialists (professionals) a few things stand out and the General's comments were generally true. Individuals and teams are shaped by selection, streaming and differentiated experience. These factors seem to have meaningful influence on whether someone is a practitioner or professional - the Matthew effect. Talent management, specifically professional development, in a fiscally constrained meritocracy is challenging, but perhaps the workforce's professionalism would benefit from wider reaching selections, streaming, and differentiated experiences. Perhaps the 'cool kid' organizations have things we should benchmark or model in our own organizations. One area we should examine is our primary training pipeline - DAU. DAU offerings should incorporate robust experiential learning opportunities geared towards professionals. Thoughts?

I don't see that as a contracting question. I recommend you pose that question to the agent's supervisor and/or person who delegated their warrant authority. (I don't even know if the agents you are referencing have warrants and are subject to FAR; OR are supply technicians, medical logistics specialists, etc. not subject to FAR) I previously lead a team working medical contracts for several years; we received a lot of brand-name justifications under similar circumstances. I don't know the inner workings of the VA, but from a practical standpoint I would think the agent should have purchased what the funds were committed for...if they weren't going to (e.g., needed a brand-name justification), they should have communicated with the requestor. *I was unaware of the two previous posts while I was posting; @Deaner seems to have nailed it.

Admittedly, I don't really understand the situation or context for questions. (Is this question about contracting for supplies using appropriated funds?) Does FAR apply to the ordering of the prosthetic? If yes, does FAR 6.302 or FAR 13.106-1( b ) apply? Sounds like routine brand-name contracting. See if FAR 11.105 helps you.

It's probably worth discussing relevant terms: Physically completed - except for rental, use, and storage agreements a contract is considered to be physically completed when -- (1) (i) The contractor has completed the required deliveries and the Government has inspected and accepted the supplies; (ii) The contractor has performed all services and the Government has accepted these services; and (iii) All option provisions, if any, have expired; or (2) The Government has given the contractor a notice of complete contract termination. (FAR 4.804-4) Closeout/Administrative Closeout - per DAU, "[c]ontract closeout is the final stage of the Government contracting process. It can begin when the contract has been physically completed, and is not finished until final payment is made, any disputes settled, and all administrative actions required by the Federal Acquisition Regulation and specific agency procedures accomplished." For contracts other than SAP, closeout means using the procedures at FAR 4.804-5. Discharge - occurs when obligations of a contract end, which entails a termination of a contractual relationship. (click for full description) Administrative change - means a unilateral (see 43.103(b)) contract change, in writing, that does not affect the substantive rights of the parties (e.g., a change in the paying office or the appropriation data). Administrative closeout of a contract generally occurs after receiving evidence of its physical completion or discharge. Administratively closing AND deobligating funds where a government/contractor obligation still exists is problematic because of the Anti-Deficiency Act and obligation recording rules. (NOTE: closing a contract doesn't have to affect the substantive rights; nor does it require a modification) In order to properly close and deobligate funds the parties' obligations need to be discharged. I wonder what people would do if annual O&M (Operations & Maintenance) appropriation was used and surpassed the 'current' and 'expired' timelines, and is 'cancelled' (i.e., no longer available for use for any purpose including disbursements/payments) ... or if a file was lost.

@joel hoffman Yes, sir. I plan on being back in the states soon though!

@joel hoffman Most threads take several turns. Since this thread is about modifications, the Administration of Government Contracts series is another great resource. It contains information regarding deviating from regulations and waiving statutory requirements; and offers a section on authority. Steven Feldman's Government Contract Guidebook, 4th ed., states that unless an agreement is palpably illegal, the government is bound by the commitments of its agrnts acting within their authority, even when they make a unilateral error of law or fact; and cites this case: https://casetext.com/case/broad-ave-laundry-and-tailoring-v-us Thanks for the discussion. The exercise prompted some learning.

Saying that there is an imperative (authoritative command) to request and consider the advice of specialists when (1) a KO doesn't know or (2) isn't aware if any law or regulation precludes a deviations seems misleading. The plain language says as appropriate. What is appropriate will vary from KO to KO, Team to Team, and is driven by the deviation at-hand. I don't think it is accurate to make a blanket assertion that if a KO doesn't know or isn't aware of a preclusion that they shall request and consider advice of specialists. (at least affirmatively outside of the normal deviation and clearance approval process, for example) Maybe I should have said your assertion was unclear or ambiguous, to me, rather than misleading. If all you meant is that whenever a KO deviates they need express authority (e.g., approvals and clearances from others), then I agree. After all, we don't always know what we don't know with regards to awareness. As appropriate requires harmony with FAR 1.602-2(a): "Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation;" FAR 1.102-4(e): "If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume that is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations ensuring that business decisions are sound." And FAR 1.402 (when deviating from FAR).

This may be misleading. Compare it with what the FAR Paragraph actually says without edits or omissions. "Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall -- (c) Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate;" Well, what is ‘as appropriate‘? Agencies have established business and contract clearance requirements that include legal and other reviews. Contracting officers are required to follow the clearance process, but even that only offers a semblance of reasonable assurance. It would take a small army to ensure that "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met."

Keep in mind that FAR 33.204 states that "The Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim." I understand that your higher-ups have an opinion, but what is the contractor's understanding regarding: 1. Minimum Guarantee 2. Inspection/Acceptance 3. Invoicing/Payment If the contracting officer and contractor are in agreement with the rules it should be easy to move forward without dispute.