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There is currently a topic of great debate in our office and I would like to get some additional opinions on the subject.

When a contractor has requested an extension to the period of performance based upon excusable delays due to unusually severe weather experienced on a construction contract, what is the proper modification authority? I would be highly interested in reviewing any associated case law on the subject.

The majority opinion is that the Contracting Officer may extend the period of performance citing FAR 52.249-10 - Default (Fixed-Price Construction) as the modification authority. The minority opinion is that this a misinterpretation of the Default Clause and authority should be found elsewhere in the FAR.

I reviewed Administration of Government Contracts by Cibinic, Nash, and Nagle and found discussion on this topic, but not a direct answer to that question. My hope is that I can provide case law or another definitive source that can settle this debate.

Thank you.

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Does the contract contain the clause 52.249-14 Excusable Delays? If so I believe the clause would be the authority for the CO do modify the contract "completion time" IAW paragraph © of the clause.

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It's unlikely that a contract with 52.249-10, Default (Fixed-Price Construction), will also contain 52.249-14, Excusable Delays, which is prescribed for cost-reimbursement, time & materials and labor-hour contracts.

What's not to like, though, with 52.249-10's language, following an enumeration of delays for which the contract "shall not be terminated," saying "If, in the judgment of the Contracting Officer, the findings of fact warrant such action, the time for completing the work shall be extended."

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Guest Vern Edwards

This business of "authority" is driven by one of the worst forms used in government contracting, SF 30, block 13.

If a contractor has experienced an excusable delay, then it cannot be terminated for default because it cannot complete the work in accordance with the original schedule. Sound business judgement (and ordinary common sense) should prompt a CO to negotiate an agreement on a new completion date. What else should he or she do? Leave the matter unsettled? Modification is a necessary course of action to protect the government's interests.

The issue here is not worthy of professionals. Put something in stupid block 13 and get on with it. Since the CO cannot terminate for default if the contractor has an excuse, try 49.402-4(a). Extend the contract instead of terminating it for default. Don't like that one? Then try 1.602-1(a). Don't like that one, try 1.602-2( b ). Use all of them.

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There is currently a topic of great debate in our office and I would like to get some additional opinions on the subject.

When a contractor has requested an extension to the period of performance based upon excusable delays due to unusually severe weather experienced on a construction contract, what is the proper modification authority? I would be highly interested in reviewing any associated case law on the subject.

The majority opinion is that the Contracting Officer may extend the period of performance citing FAR 52.249-10 - Default (Fixed-Price Construction) as the modification authority. The minority opinion is that this a misinterpretation of the Default Clause and authority should be found elsewhere in the FAR.

I reviewed Administration of Government Contracts by Cibinic, Nash, and Nagle and found discussion on this topic, but not a direct answer to that question. My hope is that I can provide case law or another definitive source that can settle this debate.

Thank you.

Why the debate? The USACE has been granting no cost time extensions for delays to critical path work "due to unusually severe weather" since at least 1980, when I began working with them. The Defaults clause at 52.249-10 is the authority for the time extension. There is no need to reinvent the wheel. There is guidance for USACE contracts in Engineer Regulation ER 415-1-15,CONSTRUCTION TIME EXTENSIONSFOR WEATHER. It can be found at http://publications.usace.army.mil/publications/eng-regs/ER_415-1-15/ER_415-1-15.pdf

Such no cost time extensions have been provided for on thousands of construction contracts over the years. The Corps uses special contract requirements to try to define to a certain extent what delays would be expected due to "normal" weather. The methodology is far from perfect but is a tool.

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Vern, you are very much correct in your assessment of the underlying issue that drives such questions. I have read the discussion regarding modification authority and agree that it is perplexing that a Contracting Officer must have an authority to modify a contract, but he/she does not have to cite an authority to award a contract.

That being said, the question at hand is whether or not a Contracting Officer is given the authority to extend the period of performance for a construction contract in FAR 52.249-10. I am of the opinion that it does, whereas others believe the regulatory authority is found elsewhere. My intent was to get a few additional opinions on the subject.

I appreciate the great responses. WIFCON never disappoints.

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That being said, the question at hand is whether or not a Contracting Officer is given the authority to extend the period of performance for a construction contract in FAR 52.249-10. I am of the opinion that it does, whereas others believe the regulatory authority is found elsewhere. My intent was to get a few additional opinions on the subject.

In answer to the question at hand, of course a Contracting Officer is given the authority to extend the period of performance for a construction contract by FAR 52.249-10. I wrote my first weather time extension mod in 1981 (for the KO to sign) under the predecessor to the FAR clause.

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Guest Vern Edwards

"Authority" on SF 30 could refer to any of a number of things, for example:

(1) the Constitutional authority of the U.S. Government at large to do a kind of thing,

(2) the Constitutional authority of the U.S. Government at large to do a specific thing,

(3) the contractual authority of the U.S. Government to do a kind of thing or a specific thing during contract performance,

(4) the authority of a particular government contracting office to do a kind of thing or specific thing,

(5) the authority of a kind of government official to act as agent of the Government in doing a kind of thing or a specific thing (is it a PCO, ACO, TCO, or is it a Head of the Contracting Activity -- see 52.203-10, Price of Fee Adjustment for Illegal or Improper Activity (JAN 1997)), or

(6) the authority of a particular government agent to exercise the Government's contractual authority to a kind of thing or a specific thing .

It is not clear what authority SF 30 block 13 refers to. The back of the form says: "Check the appropriate box to indicate the type of modification. Insert in the corresponding blank the authority under which the modification is issued." Which authority are we talking about? The authority to make that "type" of modification or the authority to make that particular modification? Whose authority? The authority of the Government at large? The authority of the contracting agency? The authority of the particular CO?

Block 13 of SF 30 is silly, and people who spend much time thinking about what to insert in that block are wasting time. Put something in there and move on. FAR 52.249-10 ought to work. If anybody says it won't, then ask them what "authority" they are talking about.

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I agree that SF 30, block 13, is unclear by its use of "authority"--and I have wasted a lot of time thinking about it. In my opinion, I think that if the CO is unilaterally modifying the contract, they should cite the contract clause that gives them that right in block 13A or 13D, as applicable (e.g., Changes, Government Property, Options, Suspension of Work, etc.). As far as Block 13C, the only sense I can make of citing an authority is if the modification is for an equitable adjustment resulting from a prior unilateral modification. In that case, I would cite the clause providing for the equitable adjustment to communicate that the modification is an adjustment under the existing contract terms and conditions and, as such, no new consideration is required. Who knows if I'm right.

It's amusing how many folks are convinced that they know what the "right" entry is for block 13C. I often ask my students what they are told to put in Block 13C and the answers are all over the map. It's the kind of thing where everyone is convinced they know the right answer, but the answers are different.

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In my younger days, when I was still doing real contracting, we used Block 13C to identify the statutory exception to CICA that authorized the non-competitive addition of work [typically 10 USC 2304( c )(1)]. If that wasn't appropriate, and there wasn't an otherwise applicable entry, like the "Government Property" clause, we tended to write "mutual agreement of the parties." Right or wrong, it worked 100% of the time, and there was never a problem.

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Guest Vern Edwards

I used "mutual agreement" successfully many times, but I was also told many times that it was not proper authority. It all depends on who you talk to.

Here is a question. If block 13 were left unfilled, do you think it would affect either the legality or contractual validity of the mod?

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Me neither.

FYI, the Navy Contract Writing Guide contains the following instructions:

Block 13.C. This block is used for:

(1) New procurement. Cite the appropriate U.S. Code and

"mutual agreement" as the authority.

(2) Changes to the contract under the authority of a

contract requirement which also include changes which

require bilateral agreement, e.g., a change order in which

price and delivery schedule changes have been negotiated.

Cite the requirement and "mutual agreement" as the authority.

If I recall correctly, Government Contract Changes, by Nash and Feldman says to cite the Changes clause in block 13C if the change and equitable adjustment are included in the same modification or if the modification is an equitable adjustment resulting from an earlier change order.

It's sad to think that one day the FAR Council will clarify all of this for us.

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Guest Vern Edwards

Even the Navy's instructions are goofy. What section of the U.S.C. authorizes new procurements? New programs and procurements are generally authorized in annual authorization acts and appropriations acts, which are not codified in the U.S.C. except to the extent that they make new permanent laws or modify existing ones.

Interestingly, look at the Guide's instruction for Block 14. So much for the form's instructions:

Notwithstanding the sentence pre-printed on the form concerning what remains unchanged in the contract, this sentence or similar language should be included separately at the end of every contract modification.

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Vern,

You may be (perhaps intentionally) misinterpreting the instructions. When it says "(1) New procurement. Cite the appropriate U.S. Code and ‘mutual agreement’ as the authority," it isn't asking for the authority for new procurements; it's saying if the mod is for new procurement, cite the authority [for other than full and open competition], much as the SF-26 has Block 13, AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETITION. Of course, if you’re using the SF-30 for new procurement, it has to be “other than full and open competition.”

For a subject "not worthy of professionals," we've certainly spent too much time on this. How many more times will this come up and be re-hashed?

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Notwithstanding the debate concerning Block 13 in the modification form itself, the real question here concerned what authority there is, if any, for the Government to extend a construction contract due to unusually severe weather.

The Defaults clause (for Fixed-Price construction contracts) establishes risk sharing terms between the parties due to various causes, among them the cost and time risks due to unusually severe weather affecting the critical path of the project.

The clause provides for a time extension but no additional money. The Contractor may get more time, which the customer never likes, but assumes the risk of any associated cost increase.

Another interesting risk sharing aspect of this clause relates to Government directed or constructive suspensions of work for unreasonable periods of time. The Suspension of Work clause provides for a contract price adjustment but it doesn't authorize additional profit or a time extension. The Defaults Clause does provide for a time extension associated with the Government act or inaction causing an "unreasonable delay" to the work.

So, it IS important to understand the clauses that have established risk sharing for both cost and time between the parties! The SF 30 should cite the applicable risk sharing clauses used to authorize price and/or time adjustments.

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Guest Vern Edwards

Navy:

I misinterpreted the instruction? "Perhaps intentionally"? Really?

You say:

When it says "(1) New procurement. Cite the appropriate U.S. Code and ‘mutual agreement’ as the authority," it isn't asking for the authority for new procurements; it's saying if the mod is for new procurement, cite the authority [for other than full and open competition], much as the SF-26 has Block 13, AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETITION.

Is that right? How do you know that? The form doesn't say that, as your brackets indicate. It would seem odd for that to have been the idea, since according to the GSA forms library and the current version of FAR at acquisition.gov, the last revision of SF 30 was in October 1983, months before enactment of CICA in July 1984 with its statutory requirement to obtain full and open competition and to justify other than full and open competition, and even more months before the FAR implementation of CICA in FAC 84-5, January 11, 1985. Have you found a more recent version of SF 30?

It's more likely that the idea behind the instruction for block 13 was to have the CO cite the law authorizing the use of negotiation rather than formal advertising (now sealed bidding) for new procurements. But if so, that law was repealed in 1985, so I don't know what is wanted in block 13 today, and neither do you. Could/should the instruction be interpreted as you imagine it? Sure, why not? I really don't care. But you have no justification for saying that is the proper interpretation. The Navy Contract Writing Guide (2005) doesn't say that. You are familiar with that guide, aren't you, Navy? In any case, the instruction in question has been on SF 30 since at least the 1970s, and people argued about it then.

I haven't misinterpreted the block 13 instruction, much less intentionally so. In fact, I haven't interpreted the block 13 instruction at all. I've said that I don't know what it means. Rather, you don't know what you're talking about.

As for how long this discussion has gone on -- my comment about the topic in Post # 4 referred to office arguments about what to put there. What we have been discussing lately is the defective nature of the form and whether block 13 is important and legally essential. I think that discussions about problems with the FAR are interesting and enlightening, and might lead to improvements. If you think that we've been talking about it too long, don't read it. Don't add to it. Go away.

How may more times will this come up? As many times as anyone wants it to. Now that I know that the topic irritates you, I might bring it up again in a week or so.

I must be getting old. I counted to 100 several times before I wrote this, because of that "perhaps intentionally" of yours.

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Guest Vern Edwards

Joel:

Cite in block 13 or block 14? If block 13, I assume you think the authority wanted is contractual authority, as opposed to statutory or regulatory authority. I would accept that, but the problem is that others might not. krusem wasn't having a problem figuring out what to put in block 13. His problem what that people in authority, e.g., reviewing staff and lawyers, disagreed with him. If people argue about such a trivial matter it means (1) they think it's important and (2) the form is ambiguous. I have know contracting attorneys who considered it a matter of legal sufficiency.

The real issue is that this is a matter that could be cleared up with a stroke of pen. Why haven't the reg writers done it? Clear and unambiguous regs matter. Consider the problems with FAR 52.215-1( c)(3). Why do the reg writers find it hard to fix even simple defects in their product?

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Vern, your comments concerning defects in the FAR is spot on. FAR 1.502 says that consideration will be given to unsolicited proposed changes to the FAR. However, I wonder just how realistic that statement is. For example, if the faculty members of the GW government procurement program were to sign a joint letter to the FAR Councils suggesting a change, how much consideration do you think it would receive? I know of a couple of situations where industry trade groups have been able to get changes to the FAR or DFARS, but just how much opportunity is there really for "outsiders" to encourage change?

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Vern, you are very much correct in your assessment of the underlying issue that drives such questions. I have read the discussion regarding modification authority and agree that it is perplexing that a Contracting Officer must have an authority to modify a contract, but he/she does not have to cite an authority to award a contract.

That being said, the question at hand is whether or not a Contracting Officer is given the authority to extend the period of performance for a construction contract in FAR 52.249-10. I am of the opinion that it does, whereas others believe the regulatory authority is found elsewhere. My intent was to get a few additional opinions on the subject.

I appreciate the great responses. WIFCON never disappoints.

Krusem, is your question whether the Defaults clause 52.249-10 authorizes the KO to issue a modification to extend the period of performance - in this case - due to unusually severe weather. Or are you asking what to cite in Block 13 of the modification as the authority? Or are you asking both questions?

i was under the impression that the essence of your question concerned the former. In my experience, the answer to the second question should logically follw the answer to the first question. The contract clause defines the (time) risk allocation between the parties for excusable performance delays due to various although not all inclusive causes. Thus, the Defaults clause provides for an excusable time extension, but no additional money, for performance delays due to unusually severe weather.

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Guest Vern Edwards

Here are some of the problems:

1. There are two FAR councils. The staffs have been cut (and some are now on furlough schedule). The DAR Council is very busy with Congressionally mandated rules unique to DOD that have to go into the DFARS.

2. The councils have 40 FAR cases pending. Many of them are due to the unceasing acquisition legislation out of Congress. Many cases are complex, e.g., 2011-001 on OCI, which is required by the 2009 National Defense Authorization Act. Three FAR cases date back to 2009. Four date to 2010. Five date to 2011.

3. Getting agreement between the two councils is very time-consuming and can be frustrating. In the past, GSA General Counsel has been a big roadblock. I'm not sure if that's still true. I have been told that processing a case can be a kind of hell, and the kinds of problems we're complaining about, while annoying and often time-consuming, seem small in comparison to others, even when they are protest bait.

4. There is an awful lot of paperwork associated with any change.

5. Reviews external to the councils, such as Office of Information and Regulatory Affairs (OIRA) and OFPP, take time and effort.

6. Changes have to go through the Federal Register publication process at the Office of the Federal Register.

The bottom line is that the acquisition system is a train wreck. Acquisition leadership is poor or practically nonexistent, and nobody much gives a damn about the regulations (some leaders lost a lot of time to conference scandals, etc.). The FAR was never a particularly well-written regulation, and the writing has not gotten better since 1983.

We should drop the charade of a single acquisition regulation, and go to one regulation for DOD and NASA and one for the everybody else. That would eliminate the need to coordinate between the two councils, but that is not going to happen, because it would be an admission that regulation simplification is not possible in the long run. Acquisition is a train wreck, but stuff gets bought sooner or later for more or less money and with more or less quality, so, what the heck. Why worry?

Of course, field staffs could use their heads and not waste time arguing about what should be inserted into an inconsequential block on an obsolete form, but to some bureaucrats a blank space on a standard form is a portent of the zombie apocalypse. They could be proactive and write their own clarifications to troublesome solicitation provisions such as the late bid proposal rule, but too many of them can't write well, don't know the rules well enough to know what needs to be fixed, and don't understand the problem even when they read the rule. In their defense, some of the rules are so complex and badly written that you need a Ph.D. to decipher them.

I'm not optimistic about acquisition improvement.

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Vern,

I didn't intend to irritate you. I intended that comment to be a joke, knowing how you like to encourage discussion. I apologize.

I did, however, think that when you said, (speaking about the Navy's instructions,) "What section of the U.S.C. authorizes new procurements?" you were interpreting those instructions to be asking that question. If you weren't, then I doubly apologize for my error. Or maybe you weren't even speaking about the Navy's instructions, but that's what I thought. Now I obviously don't know any more than you what the drafters of the form expect; as a matter of fact, I know even less -- I failed to notice the form pre-dated CICA, but the Navy's instructions did not. They were written well after CICA and its implementation in the FAR, and, although I don't "know," I think it likely they mean what I suggested. I'm not trying to say I'm right, I'm just offering one possible explanation for folks to consider.

Again, I'm sorry for offending you.

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Krusem, would you please clarify whether the essence of your question relates to whether the KO has the authority to modify the construction contract to grant a time extension under the Defaults clause - or are you simply wondering what to cite as the authority for the Mod in Block 13?

I'm trying to explain that YES, the KO can use the Defaults clause to grant a time extension for delays to the critical path of completion caused by weather conditions beyond that which would be reasonably expected.

Construction contractors generally want to maximize and welcome such time extensions when facing liquidated damages for late completion that they can't escape by otherwise justifying excusable delay(s).

However, contractors don't like the fact that excusable weather delays are generally noncompensable or that if an excusable but noncompensable delay occurs concurrently with an otherwise excusable AND compensable delay, there will be no additional cost recovery during such concurrent delays.

In other words, they often want their cake and to eat it too. So, they may pooh pooh the delay effects of the weather and try to blame all or most of the performance delays solely on a compensable type reason. Or they may argue that, but for other Government caused delays, they would not have been affected by the unusually severe weather. Sometimes the latter situation is a valid approach.

The Taxpayers would often be best served where the Government issues a unilateral mod for excusable but noncompensable delays or for the portion of the delays that the parties cant agree are excusable but noncompensable - assuming that the Government's position is sound and defensible.

The Defaults clause provides the authority in the contract to issue either a bilateral supplemental agreement or a unilateral mod. If the delay is concurrent with a delay caused by a change or differing site condition, for example, one or more of those clauses might also be associated with the time extension. Plus, there may also be other, locally developed risk allocation clauses that might cover the issue.

One way or another, it will be necessary modify the contract to reflect a change in the contract duration. The duration and/or completion period is generally stated in contract clause 52.211-10 -- Commencement, Prosecution, and Completion of Work and in Block 11 of the contract, SF 1442. It might ? also be described somewhere else in the contract.

Simply cite the applicable clauses in Block 13 of the SF 30 that justify the time extension. Block 14 is used to describe the tbasis of the time extension and to reflect all changes to the contract terms. It really isn't Rocket Science. - in my opinion.

During my days as field office engineer, Resident Engineer then in later assignments at District and Division level in contract administration performing modification oversight and construction claim resolution, I saw all sorts of these situations. Our policy was to keep up with actual weather and its effects on the schedule on a monthly basis and to try to modify the contract to reflect such delays at least quarterly, if at all possible. I either negotiated or reviewed virtually hundreds of these types of mods over the past 33 years. Yes, some turned to claims. There are books inches thick with case law concerning litigation over delays and time extensions. Unfortunately, I left the ones I had with yearly supplements for my successors when I retired from full time Government service.

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