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Found 2 results

  1. I just had an odd exchange with another KO over the last several days regarding modification authorities to use in block 13 of a SF30. For new sole source work to an existing order, they correctly used FAR 16.505(b)(2)(i)(B) in their justification. I personally would assume that one of three authorities would be used in the mod; 52.212-4(c) Changes (which is in the base), 43.103(a) Mutual Agreement of the Parties, or 52.217-8 as the work was arguably an extension... that was not the debate though. Instead, in block 13 the KO used "41 U.S.C. 4106(c)(2) and FAR 16.505(b)(2)(i)(B)" which are sole source justifications; but I did not think them modification authorities. When I asked this question of my agency's legal counsel, both confirmed that the KO was correct in their use of 16.505(b)(2)(i)(B) as "Based on the fact that this modification was done through a J&A, the J&A authority (which allowed the CO to take the action) should be the modification authority." This was surprising to me. Am I wrong to be surprised? Do others use 16.505(b)(2)(i)(B) as an authority for sole source modifications? Thank you for your responses.
  2. Hello WIFCON! Would love some input here from any knowledgeable folks about this... I am an Army PCO tasked with negotiating a request for equitable adjustment (REA) on a fixed price commercial contract for severable services that I recently inherited from a predecessor PCO. It's $5.6M, five year contract (base + four option years). The initial award was about two years ago--we are currently in the first option year. Shortly after award, during the base year, the Government realized it had vastly underestimated the magnitude and needed additional performance out of the contractor, and so the contract was modified (five times over the course of the first two years) to pull forward performance scope from the out years. So now the contractor has submitted an REA for additional OH costs related to administrative burden and greater than anticipated subcontracting costs in order to meet accelerated deadlines. The REA amount is significant, and the circumstances are much more complicated than what I'm able to provide in this forum, but, basically I've determined the REA has merit, and I'm trying to write up my merit analysis and price negotiation memo. I have a few questions I'm hoping someone can help me with. THANKS! SCOPE: As I said, I'm inclined to determine the REA has merit, but my analysis leads me to believe that we're dealing with an out of scope change. I say this after reviewing the Contract Attorney's Deskbook (Chapter 21), which outlines several factors to consider for scope determinations. Ultimately, to me the cumulative effect of all the prior changes may have constituted a "cardinal change". If that's the case, what's the change authority I'd use for the modification? In my experience, typically out of scope changes require a J&A, and with a J&A I'd use the applicable J&A authority as my mod authority--but that doesn't make sense since this is an REA, right? I'm not going to write up a J&A for all the contract changes that ALREADY happened am I? (Seems to me the modification associated with the negotiated REA is only to equitably adjust the contract as a result of the constructive changes leading up to this point.) Often I use the changes clause 52.243-1 as my modification authority, but it's my understanding that the changes clause 52.243-1 is only good for WITHIN-SCOPE changes. And since this is an REA and not a claim (yet, at least), using the disputes clause 52.233-1 wouldn't be correct either. So what do I put in the SF-30? FUNDS: I assume the fiscal law associated with an REA is the same as any other modification? I.e. Within scope modifications use award year money and out of scope modifications use current year money? Other related details: each of the aforementioned modifications were done bilaterally. The contractor signed each SF30 without a price proposal, but all along he was corresponding with the PCO and COR that he felt the contract scope was creeping larger and larger and as a result he was facing cost impacts he hadn't anticipated.
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