Contracting Officer plans to unilaterally add EVM requirements to Contract

[LM_ABITWT]

I'm encountering a problem with one of my Contracting Officers where he is trying to add Earned Value Management System requirements retroactively to our IDIQ (task order-based) contract. I had a brief conversation with him this morning and expressed to him our concerns with EVM being added with an effective date of roughly 3 months ago. His response was that we need to sign the bilateral mod or he would simply execute the mod unilaterally.

I'm looking for some ideas on how I can approach him so he does not do that and takes a minute to listen to our concerns.

Thanks!

[Guest Vern Edwards]

Did you check FAR to see if earned value management is required for your contract? If it's not required he cannot insert it unilaterally. To do so would be breach of contract. If he breaches the contract you would be entitled to damages.

[LM_ABITWT]

The CO is citing this as a "Change" to the contract and telling us to submit an equitable adjustment in accordance with the clause. I do have CPFF task orders which are in excess of $50M so I would think EVM could apply. Our primary issue is how can the CO can expect a contractor to implement EVM reporting in the middle of task order execution and in some cases when the task order will be complete in the next 6 months or less. It doesn't seem like we would be putting Gov't funds to good use.

[Guest Vern Edwards]

It would be a change in the contract, alright, but not one he can do unilaterally unless there is some clause in the contract that I don't know about.

You "would think" EVM applies? Think or know? According to FAR 34.201:

(a) An Earned Value Management System (EVMS) is required for major acquisitions for development, in accordance with OMB Circular A–11. The Government may also require an EVMS for other acquisitions, in accordance with agency procedures.

Does your contract meet the requirement in the first sentence? Does your customer require EVM in accordance with the second sentence?

[LM_ABITWT]

Yes, the second would apply to us. I needed to do some more research before I could give a more definitive answer. No prior EVM experience here so I'm learning as I go. I was looking for input on whether or not anyone had past experience with EVM requirements being imposed retroactively or post contract award.

[Guest Vern Edwards]

You should sit down with the CO and work out the precise details about how EVM will be implemented under the circumstances. It's no good asking anyone about their experience, because the implementation may be very different for you.

Since you are not intimately familiar with EVM, you will need someone who is. Get some professional help.

[joel hoffman]

Would you mind describing what type of work the contract is for? Also, is the Government implementing a formal EVM system, requiring validation, including an integrated baseline review?

Various forms of earned value management systems are commonly used by industry and I know by large construction contractors to manage their own internal work activities, budgets, productivity, etc. - even on their fixed price contracts. The concepts of EVMS aren't that complex. The complexity arises when the government requires a "formal EVMS"program, with their own prescribed procedures including "validation", which is a very expensive undertaking.

Before bilaterally agreeing to ANYTHING, I highly encourage you to heed Vern's advice.