Jamaal Valentine

No. The other party may agree with the claim without material disagreement. It seems contractual issues in controversy are disputes. Accordingly, a disagreement would need to be a material disagreement that may result in a claim or is a part of an existing claim. “Issue in controversy means a material disagreement between the Government and the contractor that- (1) May result in a claim; or (2) Is all or part of an existing claim.“

How did you determine those are the best rates?

I’m not sure if the contracting officer could or should include such a requirement? What’s the reason for inclusion? Is the requirement even enforceable/appropriate since it appears to be under a competitive RFP issued to commercial sources in the open market?

I’m not sure that we’re clear. Some posters have suggested issuing a modification citing a changes clause and others have stated changes in site availability could be done as a sovereign act. In your scenario, is the government acting as a contracting party or a sovereign? If its as a contracting party, which is what I presume, contractors can rely on the terms of the contract and can argue that the change is not within the general scope of the contract and the changes clause (e.g., changes (1) Description of services to be performed; (2) Time of performance; (3) Place of performance of the services). As previously stated, I believe there are arguments for and against such an action being within scope. However, making the site unavailable can make contract performance untenable. This can raise arguments for a governmental breach of contract. My point is that there are arguments for and against it being within scope; and how best to incorporate the new requirement. I wanted to pull on the string to see where it went. Who knows what the courts or board of contract appeals would find? To be clear, I like the approach and argument ji posted. The question is how to go about incorporating it into a contract: as a contracting party via a formal modification in a way that could survive a dispute (e.g., change in the statement of work or clauses); or incorporating compliance operative of a sovereign act.

@WifWaf Scope analysis differs in bid protest forums and contract dispute forums and you have referenced a bid protest. Can we first agree on the common factors used to determine if a modification is out-of-scope [of the contract]? 1. Changes in the Function of the Item or the Type of Work. 2. Changes in Quantity. 3. Number and Cost of Changes. 4. Changes in Time of Performance. 5. Acceptance of a Change. The new COVID clauses add new requirements that remain indefinite. These indefinite requirements evaluated through the lens of contractors—not wanting the additional responsibility of performing and funding the new work—could be argued as out of scope. Also, what is the consideration in this modification action? I presume monies, but how much? What is the government’s estimate for the new obligation? (Thinking ADA)

I believe @Retreadfed is concerned that nothing expressly requires the predecessor contractor to identify which employees are in danger of losing their jobs because of the loss of the contract.

@Retreadfed, Would you agree that the contracting officer and successor contractor are provided enough information to find out who may be affected? Successor contractors have done so in the past, in my experience. I guess we can always find a problem if we look for one. But you are right in that the FAR Council has an opportunity to clearly address the perceived flaw. @FAR-flung 1102 I mentioned 52.222-17 after Retreadfed brought up the old EO. It’s the one I think was in effect at that time. I could be wrong.

Change orders are unilateral. Period. Otherwise they are just supplemental agreements (e.g., bilateral). Because the plain language doesn’t confer any authority. In fact, it restricts authority. Not in my opinion. However, scope is much broader than that (scope of the competition; and scope of the contract). The changes clause talks about scope of the contract and your question involves scope of the competition. I wasn’t leaving. I was just thanking you for further explaining your thoughts so that I could follow. My disagreement or agreement was irrelevant; I just wanted to better understand and learn something. Again, thanks and Merry Christmas.

Based on your earlier post, I was assuming you were talking about change orders (i.e., unilateral actions), which would nullify 52.212-4(c), which I don’t read as an authority anyway. As for the 52.243-X clauses, those clauses only permit the contracting officer to “make changes within the general scope of this contract”…I think one could make reasonable arguments for and against inclusion of the new terms and conditions being in scope. Thanks.

Have you read the entire clause and its prescription? If not, I think you should before we go on about it.

Okay, so what ‘changes’ clause do you believe is applicable (i.e., provides authority for the mod in ji’s scenario)?

What about 52.222-17(d)? “(d)(1) The Contractor shall, not less than 30 days before completion of the Contractor’s performance of services on the contract, furnish the Contracting Officer with a certified list of the names of all service employees working under this contract and its subcontracts at the time the list is submitted.”

@WifWaf Typically, authority to change a contract follows basic sources of authority to contract: constitutional, statutory, regulatory, and delegated [actual] authority (including contract terms and conditions). When a contract is formed the authority to make changes is narrowed, but surely the authority to change a contract need not only be based on a Sovereign Act or a contract clause, right? Help me understand what you are talking about or thinking in your most recent post.

Thank you, Bob.

Agreed.