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1102_for_Sport

Cite the Clause or Cite the Authority

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Just came to a new agency. I never used their acquisition system before and a co-worker was showing me how to do a modification on a SF-30. I have always been mentored to cite the clause when modifying a contract ie. 52.212-4© to change a commercial item or 52.217-9 to exercise the option. Well here they cite the authority which makes sense because the authority is cited for 13(B) administrative modifications. I’ve seen it done before never used it in a modification I’ve done before but I found it acceptable. Is this one of those things people debate about but no one really knows the definitive answer ? Does it really matter if I use 43.103(A) for a bilateral mod. Should I be using the citation 17.207 to exercise an option. Whose right? Whose wrong?

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I learned to always use an authority inside the contract as the authority for a modification wherever possible. I don't say who's right or who's wrong, just that I really like using an authority inside the contract whenever possible...

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So I almost always use a contract clause inside the contract as the authority for a modification. I would NEVER use FAR 43.103( a ) as an authority. However, I might sometimes use FAR 49.402-4( a ) as an authority when I extend the period of performance in lieu of terminating for default.

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That damned SF 30! The dumbest form of them all.

FAR 43.103(a) is not authority to do anything, for Pete's sake. It is just a description of a bilateral mod. It does not say when or why you can do one. FAR 17.207 is not authority to exercise an option. An option clause is the authority to exercise an option. FAR 17.207 merely states things that the CO must do before exercising an option pursuant to the authority in an option clause. If an option clause does not authorize you to exercise an option you can't do it anyway and cite FAR 17.207. Finally, there is no authority "inside" the contract for an out of scope mod because, well, it's out of scope.

There are only three kinds of "authority" to mod a contract: (1) the authority provided in a clause, (2) the specific authority provided by a specific statute, if any, and (3) and the general constitutional authority of the government to enter into contracts provided that Congress authorizes a program and appropriates funds. That's it. Choose the one that applies.

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I'm just using their words about "Authority" I believe that if you plan to exercise an option period that you insert the clause into the contract and you cite that clause in the modification. You didn't put 17.207 in the contract you put 52.217-9 in the contract so cite it. The issue I have always come across is that no matter how much sense you seem to make people pushing 60 years old never seem to respect the opinion of something who just turned 30. The cite their years of experience and don't want to admit they have been doing things incorrect for the last 30+ years.

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Well, it may be hard for them to listen to a newbie say that they have been doing things wrong for the last 30+ years. Maybe a more reasoned approach would work better. Some of us old-timers might be able to get away with that (probably not), but a newbie?

Try to evoke a reasoned explanation from them for their answers. If you don't get one, just say that you don't understand and walk away.

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1102_for_Sport, I agree that you would use the 'authority' IN the contract (52.212-4© for example). I haven't seen it done using another type of authority but maybe I am lucky that my office all agrees on using what is in the contract. I also feel lucky to have CO's that are willing to listen to my ideas/reasonings and if they disagree, they explain where I am wrong and why while allowing me to ask more questions.

traditiondemotivator.jpg

;)

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This is an interesting topic to me as well. In contracts that are not commercial and do not have 52.212-4©. When you have a bilateral modification, the authority isn't really required in my opinion. It is a supplemental agreement between two parties. I have a warrant and plan to use it! :) FAR 1.602-1 is my authority.

Now with a unilateral modification, you should always cite the FAR clause in the contract that allows you to do so, as stated before using the Option clause, T4D clause for time extensions. My biggest concern is that the Changes clause is constantly used as the authority for bilateral within scope modifications. Why? By doing so don't you give them the opportunity to submit a request for an equitable adjustment? Changes clause should only be for a change order, which is within the rights of the contracting officer to do unilaterally as stated in the clause.

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How many people think that FAR 52.212-4( c ) gives the parties the authority to modify a contract? If a contract did not contain a statement that changes would be bilateral, do you think the parties would not be able to modify the contract?

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I agree with Vern that one should use "...(1) the authority provided in a clause, (2) the specific authority provided by a specific statute, if any, and (3) and the general constitutional authority of the government to enter into contracts provided that Congress authorizes a program and appropriates funds.." This is probably the safest choices.

I have worked where the authority most commonly cited was "mutual agreement of the parties" and would caution against using this as an authority. I was not comfortable using this authority and tried to cite the contract clause whenever possible.

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I am in the same boat as the original poster. My previous agency cited the clause in the contract that allowed the modification. My current agency cites 43.103(a) "mutual agreement of the parties". I am of the opnion that 43.103(a) does not give authority to do anything, it is afterall an explaination.

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There are only three kinds of "authority" to mod a contract: (1) the authority provided in a clause, (2) the specific authority provided by a specific statute, if any, and (3) and the general constitutional authority of the government to enter into contracts provided that Congress authorizes a program and appropriates funds. That's it. Choose the one that applies.

(Emphasis added.)

I'm probably being obtuse. If this is a stupid question, I'm sure someone will point that out. Is there a circumstance under which a specific statute, or general constitutional authority of the government to enter into contracts, could operate to authorize a modification absent a clause providing authority?

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Yes, several, actually. For examples of specific statutory authority to modify a contract absent a contract clause see, for example, FAR 4.1502, 41.103(a)(3), 43.102( c), and 50.101-1(a).

Have you learned?

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Have you learned?

Absolutely. And not just facts and answers. Ways of approaching, articulating, analysing, reasoning, resolving and retrenching, When I'm being stupid, I'd far rather experience the discomfort of having been called on it than not learn anything by it.

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I'm now at one of those funny "non-FAR" governmental entities, so we can do lots of strange things here. But to put in my two cents, if I am modifying a contract by exercising an option, I cite the option clause as the "authority," if I am extending for up to six months due to the clause allowing for extension of services, I cite that clause, and if it is a modification pursuant to the applicable changes clause, I cite that. But I also use "mutual agreement of the parties" quite frequently. What that one means to me is first, the SF-30 better also have the box marked that requires the contractor's signature because mutual agreement of the parties is by definition a bilateral modification (yes, I've actually seen forms where the "authority" cited is "mutual agreement of the parties" and that box isn't checked and there is no contractor signature). Secondly, it also means that I make sure that I document the file to show that I have taken all steps necessary to entering into this new agreement (such as any necessary sole source justification) since this is a new agreement between the parties, it has jus taken the form of a modification to the existing agreement instead of issuing a whole new agreement. I guess technically the "authority" for those types of mods is the same authority that a governmental entity has to enter into contracts in the first place, but I don't think I've ever seen anyone actually put on an SF-30 a reference to the underlying constitutional or statutory authority to contract.

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I guess technically the "authority" for those types of mods is the same authority that a governmental entity has to enter into contracts in the first place, but I don't think I've ever seen anyone actually put on an SF-30 a reference to the underlying constitutional or statutory authority to contract.

Emphasis added.

I don't understand that comment. What is that supposed to mean to us? Are we supposed to infer something from the fact that you haven't seen something? The fact that you haven't seen something means that... well... you haven't seen it.

The modern version of Standard Form 30 made its appearance in 1966. Since then the government has made millions of contract modifications. How many of them have you seen? How many of the tens of thousands made each year do you see?

As for mutual agreement of the parties, what kind of authority is that? Who or what authorizes the government and its contractors to do anything by mutual agreement? Can they give themselves permission? Why ask people what their authority is to do something if they can authorize themselves? Why ask a CO to document her authority if she is her authority? If she is her own authority, who authorized her to be?

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Sorry to have been unclear. My statement was merely anecdotal information from one contracting officer to another. I have often found it interesting (and sometimes amusing, or even horrifying) to hear what other contracting offices or contracting officers are doing. But I in no way meant to say that because I had or had not seen something was indicative in any way as to what was right, proper or legal. But, you have now got me thinking about why this topic is of such interest to me. I think what I would really like to know is why the SF-30 in block 13 C asks one to cite the authority for entering into a supplemental agreement when the standard forms for documenting a contract (such as the SF-26) do not require a cite to the authority to contract? Why would it serve a purpose to cite on an SF-30 the proviision of the U.S. Code granting my activity contracting authority when it presumably doesn't serve a purpose on an SF-26? Maybe I should just cite my contracting officer warrant? That actually might be useful, as [brace yourself, I'm about to make an anecdotal observation about what I have personally experienced, and intend in no way to assert such observation as a universal truth] I have never been asked by a contractor to see my contracting warrant. And it can be risky for a contractor to merely assume that the government official with whom it is dealing has actual authority to contract, so citing my warrant could actually serve a useful purpose. Thank you Vern, for your passionate policing of these discussions by questioning faulty logic and inane observations such as my post.

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The question you have asked about SF 30 has been asked for at least 39 years. I know that because people were asking it when I started got started. I don't know why the form requires that information. That's why I said in my first post that the SF 30 is a dumb form.

I know COs who put "U.S. Constitution" in block 13C. They didn't get it through. I know COs who put 10 U.S.C. Ch. 137 and did get it through. I have used "mutual agreement of the parties" and gotten it through sometimes, but not other times. I know COs who cited CICA.

Dumb form.

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On the SF30 in block 13b for unilateral changes, it states or suggests the authority is FAR 43.103(B). However as someone else pointed out, when you read 43.103(b ) it simply seems to be a definition or a description not an actual authority. For bilateral mods, I usually use 52.212-4(c ) as my authority since it actually talks about changes and is IN the contract. Technically I suppose I could go further and cite FAR 12.301 which actually lists an actual authority/law or even list the law. But I believe listing 52.212-4(c ) is good enough. Though like I said 43.103(b ) doesn't seem like an authority to me. But if I do an unilateral change I simply check block b and go on. But these changes would just be for items that do not affect the contractor in any way---like a change of pay station or LOA change.

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"52.212-4 -- Contract Terms and Conditions -- Commercial Items. ( c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties."

What gives you the right to issue a unilateral modification under this term of a commercial contract?

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My only response would that the conditions and terms of the contract have not changed and I don't know where it says I can't do a unilateral mod to change an LOA or something that does not affect the conditions of the contract. If the terms and or conditions of the contract were changed then yes a bilateral mod would need to be completed.

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Voxx, I don't see how "52.212-4 -- Contract Terms and Conditions -- Commercial Items. ( c) Changes" authorizes any unilateral changes. There may be other terms such as Disputes or Novations or name changes. However, I dont think that silence concenring possible other changes in ( c) actually authorizes unilateral changes under that term in ther clause. That paragraph authorizes changes in terms or conditions via bilateral agreement.

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