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Is Changing the Due Date of a Deliverable a "Change Order"?


Voyager

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I have a clause that defines "technical direction" to be performed by the COR.  It says it IS this:

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(1) Providing direction to the Contractor that redirects contract effort, shift work emphasis between work areas or tasks, require pursuit of certain lines of inquiry, fill in details, or otherwise serve to accomplish the contractual Statement of Work.

(2) Providing written information to the Contractor that assists in interpreting drawings, specifications, or technical portions of the work description.

(3) Reviewing and, where required by the contract, approving, technical reports, drawings, specifications, and technical information to be delivered by the Contractor to the Government.

It says it is NOT this:

Anything that - 

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(1) Constitutes an assignment of additional work outside the Statement of Work;

(2) Constitutes a change as defined in the contract clause entitled “Changes;”

(3) In any manner causes an increase or decrease in the total estimated contract cost, the fee (if any), or the time required for contract performance;

(4) Changes any of the expressed terms, conditions or specifications of the contract; or

(5) Interferes with the Contractor's right to perform the terms and conditions of the contract.

I will add that the applicable Changes clause says rather vaguely (hence this inquiry) that a change order is this:

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(a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:

(1) Description of services to be performed.

(2) Time of performance (i.e., hours of the day, days of the week, etc.).

(3) Place of performance of the services.

(4) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications.

(5) Method of shipment or packing of supplies.

(6) Place of delivery.

Under these premises, is the COR allowed to provide relief if, for some technical reason, a deliverable must be delayed for submittal by up to 30 days?  Or is that a change order?  I plan to ask the COR to state in writing that the relief is isolated, and allowing it would have no effect whatsoever on other deliverables technically, including their submittal dates.

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53 minutes ago, Voyager said:

is the COR allowed to provide relief

So you have a "clause" but do you have a copy of the COR designation letter.  Usually they are sent to a contractor.   If you have it what does it say about "relief" if anything? 

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Some backup information hopefully sufficient enough to resolve any questions from the forum:

  • Contract is FFP services
  • Deliverable due date is specifically stated in the contract
  • Government not planning to seek equitable adjustment/consideration for the delay
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7 minutes ago, C Culham said:

So you have a "clause" but do you have a copy of the COR designation letter.  Usually they are sent to a contractor.   If you have it what does it say about "relief" if anything? 

You have hit the nail on the head.  The clause I quoted above is from the agency supplement; this inquiry arises because I am writing the COR designation letter and tailoring its contents to say what actions are considered a change order specific to the contract.  I would like to resolve many pointless administrative mods and worries in advance this way.

I am thinking the 1) isolation of a change and 2) lack of cost impact matter to this distinction between technical direction and change order.  Is my judgment correct?  Are there other factors to consider here?

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I would think the COR does not have the authority to grant this "relief," as it is a date specified in the contract and affects when the gov't will receive it.  As such, I would expect the CO/KO to make that call, not the COR.  They can tell the COR it's okay and relay that to the contractor, but I would not expect the COR to have the authority to do it on their own.  I think in your example the change in date could fall under (3) or (4) of the what the COR is NOT, above.

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1 hour ago, Voyager said:

Under these premises, is the COR allowed to provide relief...

@VoyagerThis wasn't posted in "For Beginners Only."

If you know anything about contracts and contracting, then you should know that the answer to your question depends on (1) what you mean by "relief," (2) the words of the contract, and (3) the pertinent facts.

None of us can provide a trustworthy answer to your question without knowing what you mean by "relief," seeing the words of the contract, and having more facts.

Generally, a COR is not authorized to provide contractual "relief" in the form of an equitable adjustment or compensation for breach damages. See 1.602-2(d)(5).

Do some homework before posting questions.

 

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32 minutes ago, Don Mansfield said:

Wouldn't this prohibit the COR from changing a due date for a deliverable? 

I think (4) would indeed.  Not a judgment call after all - wasn't even worthy of a forum post.  I just work from home and had no one to visit on a quiet Friday.

Thanks and have a good weekend, all.

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8 hours ago, ji20874 said:

The proposed "relief" does not sound like a change order to me.  Is this "relief" really a forbearance?  

Regardless, the COR “[has] no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions.”

See FAR 1.602-2 (d) (5), as Vern referred to.

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On 10/8/2022 at 12:56 PM, ji20874 said:

If it is forbearance, the original poster errs in calling it a change order.  

That’s interesting.  What is the difference, practically speaking to this thread’s stated circumstances, between forbearance and a change order?  Maybe with that knowledge you can help me define “relief” - and use it better next time.

I’ll also ask for general, theoretical differences between forbearance and changes in a new thread.

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1 hour ago, Voyager said:

That’s interesting.  What is the difference, practically speaking to this thread’s stated circumstances, between forbearance and a change order?  Maybe with that knowledge you can help me define “relief” - and use it better next time.

Have you. tried Googling <contractual forbearance>?

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4 minutes ago, Vern Edwards said:

Maybe with that knowledge you can help me define “relief” - and use it better next time.

Here is how Black's Law Dictionary, 11th ed., defines "relief" in the context that is has been used here:

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3. The redress or benefit, esp. equitable in nature (such as an injunction or specific performance), that a party asks of a court. — Also termed remedy. Cf. REMEDY.

affirmative relief. (1842) The relief sought by a defendant by raising a counterclaim or cross-claim that could have been maintained independently of the plaintiff's action.

alternative relief. (1851) 

Judicial relief that is mutually exclusive with another form of judicial relief. • In pleading, a party may request alternative relief, as by asking for both specific performance and damages that would be averted by specific performance. Fed. R. Civ. P. 8(a). Cf. ELECTION OF REMEDIES.

coercive relief. (1886) Judicial relief, either legal or equitable, in the form of a personal command to the defendant that is enforceable by physical restraint.

declaratory relief. (1852) A unilateral request to a court to determine the legal status or ownership of a thing.

extraordinary relief. (18c) 

Judicial relief that exceeds what is typically or customarily granted but is warranted by the unique or extreme circumstances of a situation. • The types of extraordinary relief most frequently sought are injunctions and extraordinary writs, esp. mandamus. See INJUNCTION; MANDAMUS; PROHIBITION (2). Cf. extraordinary writ under WRIT.

interim relief. (1886) 

Relief that is granted on a preliminary basis before an order finally disposing of a request for relief.

special relief. See SPECIAL RELIEF.

therapeutic relief. (1889) 

The relief, esp. in a settlement, that requires the defendant to take remedial measures as opposed to paying damages. • An example is a defendant-corporation (in an employment-discrimination suit) that agrees to undergo sensitivity training. — Often shortened to therapeutics.

 

 

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Voyager, look at the Changes clause in your contract. Does that clause authorize the government to issue a [unilateral] change order to extend the delivery date for the purpose you described?  This is a YES or NO question.

If YES, please tell us the citation for the changes clause and the actual text of the clause that authorizes the change order you describe.  We have not seen your contract or its contents.

 

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The specific requirements and circumstances of the delay in performance would have a bearing upon your original inquiry. 

On 10/7/2022 at 1:27 PM, Voyager said:

Under these premises, is the COR allowed to provide relief if, for some technical reason, a deliverable must be delayed for submittal by up to 30 days?  Or is that a change order?  I plan to ask the COR to state in writing that the relief is isolated, and allowing it would have no effect whatsoever on other deliverables technically, including their submittal dates.

I think the question of whether or not the COR can provide “relief” from the required performance period has been answered (“no”). This would be under the authority of the KO or ACO, if within its delegated authority.

Chapter 10 of Administration of Government Contracts, covers, among other things, Default Terminations for progress failures, the Right to Terminate, Waiver of the Right to Terminate, Reasonable Forbearance, etc. It also discusses discretion by the KO whether or not to terminate. The defaults clause states that “the Government “may… terminate”. 

It is a complex topic.  Suggest obtaining or borrowing and studying a copy of the book.

As to whether the contract needs to be “changed” to document forbearance or waiver of a performance requirement, the action needs to be documented but might not require a formal modification as a “change”. Yes, if the overall performance period/completion date is affected by the delay.

Might depend upon whatever tail wagging the dog automated contracting software system is being used and/or agency policies are applicable.

Modifying the contract would make it clear to any outside or future stakeholders/reviewers for the record.

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On 10/7/2022 at 2:27 PM, Voyager said:

Under these premises, is the COR allowed to provide relief if, for some technical reason, a deliverable must be delayed for submittal by up to 30 days?  Or is that a change order?  I plan to ask the COR to state in writing that the relief is isolated, and allowing it would have no effect whatsoever on other deliverables technically, including their submittal dates.

@Voyager The ABA expounds on change orders within the following link: https://www.americanbar.org/groups/construction_industry/publications/under_construction/2018/fall/construction-101/.

You might also want to reference the definition of Change Order within FAR section 2.101. 

It's just my two cents, but if you are in doubt as to how you should proceed, might the safest solution be to have the contractor's authorized representative bilaterally agree to the changes as described on an SF30, within which the Government includes release of claims language, thereby further protecting itself?

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