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ohnoudidnt14

Change Order Negotiation

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She is at it again!!! I have a change order negotiation scheduled in a couple of weeks to negotiate a change order to a FFP, SDVOSB set-aside, construction contract. My contracting officer is trying to dictate that I not bring anyone else to the negotiation including subcontractor representatives (even though they represent a majority of the scope of the change) and key project managers that have first-hand knowledge of the site conditions.

I am confident that this move is an attempt to isolate, outnumber, and overwhelm me (they plan to have 6 people present including a SME and JAG rep.) and is far from operating in "good faith". Isn't it up to me who I have present at the negotiation? Please help me with some regulatory and/or FAR references that support my position (or prove me wrong with the same supporting the CO's position).

Thanks

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Guest Vern Edwards

There is no regulation about whom a contractor may bring to negotiations. You are entitled to take anyone you want to a negotiation. Tell the CO what people you plan to bring. If she forbids you to bring anyone, anyone at all, tell her to put it in writing so you can show it to your lawyer and get his advice. Do not attend the negotiation on her terms.

If they have a lawyer, you should bring a lawyer. If you don't have a lawyer, get one, and one who knows government contracts.

If you back down now, she'll own you.

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Mr. Edwards is 100% correct. Just because the KO tries this and may have gotten away with it does not mean it has to happen to you...

I am curious about the lawyer part though. I am a KO with DoD and if we ever need a gov lawyer present we always insist the contractor does as well. This seems very strange to me.

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No, not an ACE contract. I'm glad to see general concurrence with my position. I don't mind NOT bringing the subcontractor, if they have any comments regarding the subcontractor's portion of the scope of work, it just won't get resolved in this negotiation...but I will bring some backup.

Thanks

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It's never a good idea to negotiate from a position of weakness; if you need to have your subcontractors present at negotiations in order to have a full understanding of their proposal or in order to be able to speak to how they proposed on the requirement then it would only serve to weaken your position or to make the negotiation process take longer if you don't bring everyone you need to in order to support negotiations.

The bottom line is that unless the Government is going to direct you via unilateral modification, then they will be expecting you to enter into a bilateral agreement. Why would you enter into a bilateral agreement without having fully done what you need to do to protect the company that you own, manage, or represent?

And yes, get it in writing. Sometimes the Government does a good job of not being the more reasonable party, and if you are a small business and you end up in a dispute you want to be able to demonstrate that the KO discouraged you from making informed decisions, especially if your firm is a small business. This can lead to establishing superior knowledge on the part of the Government down the road.

On the flip side, have a man in the mirror moment and ask yourself if there's some condition that has prompted the KO to bring so many people into the room. It may be worth taking a look at how you and the KO communicate to see if there is some way that you can improve communications and build stronger rapport so that this isn't a problem in the future.

Definitely though I would suggest that for every function that the Government brings into the room (e.g. JAG, SME, etc.) that you are matching 1-for-1. While you're at it, dress sharp, and bring facts and confidence into the room.

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You could always go in alone, and for each point of discussion, take it under advisement because you need to consult with your subcontractor, or whomever. But Dingoes' approach is better.

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Just so I'm clear, when you say change order, do you literally mean a unilateral change as in the FAR definition? Or do you mean negotiation of a bilateral change? My answer applies either way, I am just curious.

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Dingoes, are you asking ohno if this is a negotiation of a change before it is issued as a bilateral mod or is it taking place after the the government has issued/directed the change? Either way is usually a bilateral negotiation. It has been rare in my experience for the government to unilaterally issue a definitized change order to a construction contract.

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Joel, yes that is exactly what I am asking, and completely agree that a unilateral would be unusual. Just validating my initial assumption, but curious as to why the JAG would be at a negotiation unless this is somehow pre-litigative in nature.

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It was a negotiation of a change to ultimately be a bilateral agreement as Joel described. It was quite brutal and the gov was definitely not acting in good faith (but no, they did not have JAG present). More to follow.

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