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Conformed Contract - definition


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On 5/26/2022 at 4:15 PM, Confused in Maryland said:

Hi.  Apparently there is a difference between the Government and Commercial definitions of "conformed contract". Where can i find a good explanation, so I can better understand the Government's expectation?  Thanks. 

As used in government contracting, conformed contract refers to a "tracked changes"  copy of a contract document that has been edited to reflect the text of a contract as modified after contract formation. In that sense it is supposed to be a copy of the text of the contract as currently agreed-upon by the parties.

A conformed contract is an administrative convenience. It enables the parties to quickly refer to the current text of the contract without having to work through the text of each contract modification. Properly maintained, it is a valuable time-saving mechanism. Poorly maintained it is a nuisance. In any case, it is not an authentic duplication of the contract unless signed by the parties. It is just the maintaining party's assertion of the text of the contract. But see Doyon Utilities LLC v. U.S., 148 Fed.Cl. 69, at 76 (2020), in which the Court of Federal Claims admitted into evidence the text of a conformed copy of a contract over the objections of the plaintiff.

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At the outset, Doyon objects to the Court's consideration of Exhibit A to the United States’ motion sub judice, which it refers to as the “28 September 2007 Contract referenced at Paragraph 6 of Doyon's Complaint.” (Pl.’s Resp. at 9-10). Doyon submits that “Exhibit A is not the Contract. It appears to be a draft agreement that was never executed by the parties, and is in a redline or ‘track changes’ format.” (Id.). Doyon's response attaches the original, unmodified contract of September 28, 2007. (See Pl.’s Resp. Ex. 1). The United States indicates that the objected exhibit was a “conformed version of the contract submitted for the convenience of the Court and the parties, and reflects the relevant supplemental agreements (i.e., bilateral contract modifications) that are now part of the contract ....” (Def.’s Reply at 2). Though Doyon objects to the consideration of such document, it does not challenge the authenticity of what the document purports to be. After comparing that document to the official contract, this Court finds that the Complaint substantially relied on the changes made and relevant supplemental agreements. Therefore, the document will not be excluded from consideration.

The term conformed contract or conformed copy of a contract does not appear in the Federal Acquisition Regulation (FAR) or anywhere else in the Code of Federal Regulations, although it may appear in some agency-specific publications. The term does not appear in Black's Law Dictionary, 11th ed. The term "conformed copy," which does appear in Black's, does not seem to refer to what is meant by the term conformed contract as used in government contracting. I am not aware of any published "commercial" definition.

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On 5/26/2022 at 8:15 AM, Confused in Maryland said:

Hi.  Apparently there is a difference between the Government and Commercial definitions of "conformed contract". Where can i find a good explanation, so I can better understand the Government's expectation?  Thanks. 

,I am not aware of any definition of that in the UCC or common law. If you are, would appreciate you sharing it. Thanks.

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One place I worked at early in my career had a policy of using confirming contracts throughout that section of the office.  Contract modifications listed changes in detail and used replacement pages where parts of the contract changed.  To avoid renumbering pages, replacement pages used suffixes with page numbers when pages got added or “reserved” when pages were removed.  All modifications were done as supplemental agreements too.

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In terms of the UCC and common law usages, there is "conforming to a contract" rather than a "conformed contract."

In the UCC:

"§ 2-106. Definitions: "Contract"; "Agreement"; "Contract for sale"; "Sale"; "Present sale"; "Conforming" to Contract; "Termination"; "Cancellation".
...

"(2) Goods or conduct including any part of a performance are "conforming" or conform to the contract when they are in accordance with the obligations under the contract."

I don't think I've heard "conformed contract" in relation to this definition but rather how Vern and WifWaf define it, above.

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On 5/28/2022 at 11:36 PM, Vern Edwards said:

As used in government contracting, conformed contract refers to a "tracked changes"  copy of a contract document that has been edited to reflect the text of a contract as modified after contract formation. In that sense it is supposed to be a copy of the text of the contract as currently agreed-upon by the parties.

That was the practice in my contract administration offices and in the District Construction Division Offices dating back to at least the 1970’s. Before the use of word processors in the mid 1980’s, there was a hard copy of the original IFB, as awarded  with all amendments attached and marked-up/incorporated. All revisions were tracked. Deleted “specs” pages (the “book”) were crossed out, added pages were noted as added, revised pages were retyped with revised or deleted wording shown as “strike through” with the new or revised wording added. Each page noted which amendment(s) were applicable.  

There was another clean, hard copy of the awarded contract maintained with similarly tracked changes as mods were issued. We also maintained a master set of contract drawings with each revision of a sheet included.

I’m sure that there were other various ways to maintain an up to date version of the conformed contract then and now. With the advent of word processors and electronic copies, I recall that one could show tracked changes or just the current version.

For purposes of contract administration and  especially for forensic analysis of developing issues, making contract interpretations, evaluating REA’s and claims, negotiating changes, etc., it was really a great resource.

I really liked being able to review the conformed documents with all amendments and mods tracked and identified.

I would occasionally visit the “official” files in Contracting . However, since that office didn’t administer construction contracts, they didn’t maintain conformed copies of the contract after award due to lack of manpower as well as avoidance of duplicated efforts and filing storage . Various office were responsible for maintaining their specific portions of the “official files”. After contract close out, each office would send their portion of “official files” to Contracting to be shipped in storage boxes to the “Records Holding Warehouse”.

 

Edited by joel hoffman
Corrected typo : Separated amendment set from as modified set.
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Since the adoption of paperless contracting, I’m curious about current practices in various agencies and organizations. Could some readers here describe if and how they or their organization maintains a EDIT:  [conformed contract document for the contract files]?

Inasmuch as some (of our) large contracts have had over 100 mods, it would be virtually impossible to be able to read the current contract requirements ,  if one has to memorize the affected contract pages or sections or read through every mod each time. And I’ve seen long term contracts have numerous KO’s and ACO’s over the term…

Thanks.

Edited by joel hoffman
[ ] bracketed language revised
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On 5/26/2022 at 10:15 AM, Confused in Maryland said:

Hi.  Apparently there is a difference between the Government and Commercial definitions of "conformed contract". Where can i find a good explanation, so I can better understand the Government's expectation?  Thanks. 

Hi, confused. What “expectation” are you referring to? The Government’s  expectations of the Contractor? 

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2 hours ago, joel hoffman said:

I’m curious about current practices in various agencies and organizations. Could some readers here describe if and how they or their organization maintains an official, conformed contract file?

NAVFAC has a design submittal requirement for a "Consolidated RFP Documents" in design-build projects.  People commonly refer to this as a conformed contract.  The requirement is to: consolidated RFP documents incorporating the Contractor's Proposal and all RFP amendments and revisions that are contained in the contract award.  There is no requirement to update this submittal as modifications are issued after award.  While this submittal requires government approval, and may be useful for design reviews, it does not substitute as the official contract file.

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46 minutes ago, Vel said:

NAVFAC has a design submittal requirement for a "Consolidated RFP Documents" in design-build projects.  People commonly refer to this as a conformed contract.  The requirement is to: consolidated RFP documents incorporating the Contractor's Proposal and all RFP amendments and revisions that are contained in the contract award.  There is no requirement to update this submittal as modifications are issued after award.  While this submittal requires government approval, and may be useful for design reviews, it does not substitute as the official contract file.

Thanks, Vel. NAVFAC and USACE have different approaches to the Order of Precedence of the contract documents (solicitation and accepted proposal) and whether or not the final design is considered part of the contract or is just a deliverable. The NAVFAC apparently makes the final design part of the contract. USACE treats the final design as a deliverable that must conform to the contract requirements, with some flexibility for the contractor to adjust to fix constructability, design errors, or other revisions that don’t change the accepted proposal  (including betterments) or the solicitation.

However, I think that the idea of a submittal that integrates the accepted proposal, solicitation and “revisions that are contained in the award” may have some merit for USACE, too.

I saw too many instances in the USACE where the accepted proposal (including proposed betterments (design and construction features which both meet and exceed the RFP requirements) weren’t  provided to the ACO or to the design discipline reviewers during design development and construction.

A submittal of a conformed set of documents should help clarify what constitutes the awarded contract requirements.

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2 hours ago, Vern Edwards said:

You don't conform a contract file. You simply add to it, generally in chronological order.

You conform a contract document.

Vern, I agree. I used the wrong terminology. I was thinking of a conformed file copy (copy for the file) of the contract document. 

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