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mtclymer

Would a contractor find the Government Delay of Work clause preferable?

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Vern,

"So if you want to be 'clean,' why would you cite 52.212-4(c ) in SF 30, Block13C, as authority to make a change by mutual agreement?"

To your point, the clause, and thus the contract, require that mutually agreed-to changes be written. The SF30 is your written agreement. You (well, me - you can do whatever you want) cite 52.212-4 to clearly demonstrate that this mutually agreed-to change is done in a way that complies with the terms of the contract.

I'm curious - as a practical matter, what do people put in block in 13 (it may not be 13C) of the SF30 when executing a bilateral change to a commercial contract? Citing 52.212-4 is not wrong (despite the seeming tone of this thread) and is one option. There are certainly other options. I would argue that 52.212-4 is the best option, but I wonder what other people do and why.

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And of course this principle is true of any clause. The clause itself never gives the CO authority to anything unless it's incorporated into the contract. And then the authority comes not from the clause, but from the contract.

So clauses in contracts don't give the CO authority, it's the contract that does? Hmm, let me just check my FAR.

Generally, Government contracts contain a changes clause that permits the contracting officer to make unilateral changes, in designated areas, within the general scope of the contract. (FAR 43.201(a))
The termination clauses or other contract clauses authorize contracting officers to terminate contracts for convenience, or for default, and to enter into settlement agreements under this regulation. (FAR 49.101( a ))

The clauses referred to in (a) of this section--(2) Give the Government the right to make inspections and tests while work is in process;... (FAR 46.202-3( b )

But I'm the one in bizarro-world.

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Don, relax. I didn't mean any offense. Just an attempt to lighten the mood.

But those clauses don't do a lick unless they're actually in the contract.

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onliberty,

Yes, but you wrote that once a clause is in a contract, "then the authority comes not from the clause, but from the contract." That's the part that was wrong.

I'm not offended by anything you wrote. However, I'm losing faith that you will "get it".

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Don,

How about we try this:

1. You or I (hereafter "we") read a post.

2. Within that post, there is a word or phrase we take umbrage with.

3. We remember we're reading a discussion forum and not a carefully crafted, technical legal document.

4. We go back and re-read entire post (including previous posts for context, if necessary).

5. We see if we can discern the overall point the entire post is trying to make (considering context).

6. We check to see if our umbrage goes away, even if we remain slightly annoyed at poor author's unfortunate (and clearly idiotic) word choice.

7. If (6) proves successful - we offer our clarifying remarks. They will be welcome and beneficial.

8. If (6) proves unsuccessful, we go back and re-read step (3).

9. If (6) still proves unsuccessful - we ask for further clarification about what the overall point of the overall post was (while trying our hardest not to not scream the poor fool into oblivion for not "getting it.")

Deal? :)

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You... cite 52.212-4 to clearly demonstrate that this mutually agreed-to change is done in a way that complies with the terms of the contract.

That doesn't make sense. Why would you do that? SF 30 Block 13C does not call for the CO to demonstrate that the mutually agreed-to change was done in a way that complies with the terms of the contract. That's not its purpose. The instructions on the form tell the CO to "insert... the authority under which the modification is issued." So why insert a reference to a clause that does not authorize the mutual agreement? Why, instead, would you cite a clause to prove that the change was done in compliance with a term of the contract requiring that the agreement be in writing?

Inserting 52.212-4 is dead wrong, because it doesn't comply with the instructions on the form. That clause requires only that changes by mutual agreement be made in writing. It doesn't authorize anything. 52.212-4 is not the best option to insert in 13C. It's not an option at all if you want to comply with the form instructions.

What did I insert in SF 30? "Mutual agreement." Sometimes I inserted 10 U.S.C. something or other. Frankly, I don't think anyone knows what the author of SF 30 wanted when he or she asked for "the authority."

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Don,

How about we try this:

1. You or I (hereafter "we") read a post.

2. Within that post, there is a word or phrase we take umbrage with.

3. We remember we're reading a discussion forum and not a carefully crafted, technical legal document.

4. We go back and re-read entire post (including previous posts for context, if necessary).

5. We see if we can discern the overall point the entire post is trying to make (considering context).

6. We check to see if our umbrage goes away, even if we remain slightly annoyed at poor author's unfortunate (and clearly idiotic) word choice.

7. If (6) proves successful - we offer our clarifying remarks. They will be welcome and beneficial.

8. If (6) proves unsuccessful, we go back and re-read step (3).

9. If (6) still proves unsuccessful - we ask for further clarification about what the overall point of the overall post was (while trying our hardest not to not scream the poor fool into oblivion for not "getting it.")

Deal? :)

No deal. I will not conform to any code that puts the onus on the reader to figure out the author's "overall point" or excuses errors in facts or reasoning when the author hasn't bothered to take the time to think about what they are writing, verify their facts, and write clearly. We hold each other to very high standards in this forum and are better for it. I propose a simpler code: take responsibility for every word you write. Verify your facts. If you can't prove a statement is true, then qualify it with "I think" or "I'm not sure, but...". If you make a mistake and someone corrects you, say thank you--don't make excuses like "this is only a discussion forum".

Deal?

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Someone once said, "A person who would spend a lot of time fretting over what to put in block 13 of SF 30 or posting a question about it at Wifcon should not be given anything else to think about. It would overload their circuits."

Back to the original topic, I cannot think of any reason why an agency should not include FAR Clause 52.242-17 when not otherwise prohibited. I have never understood why MAC Servicing Agencies have not included this clause in their contracts; it would probably save agencies money and time not litigating government delays.

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Don,

I had to remove my avatar, because that philosophy doesn't seem to be welcome here.

I will tell you I retract my bemoaning of entering bizarro-world. I think it's good to enter there sometimes. I know I've learned a lot from reading discussions such as these, and if the respective parties hadn't taken the arguments into bizarro-world, I probably never would have known where reality ended and bizarro-world began. So it's good to engage in these intellectual hyper-theoretical discussions that have no real basis in reality, but by being exposed to them, you at least know when you've left reality. That in itself is very educational.

As for your deal, how about we compromise and do both? We will recognize there are bizarro-world weirdos on here (which includes me) and thus always write with Don Mansfield's linguistical preferences firmly in mind ;), and we'll practice the skill that's essential for any hermeneutic and read with discernment, recognizing that context is the best interpreter. If we don't at least commit to this, then no matter what we write, even if it's 10 pages of dense legalese full of every qualification imaginable, we'll be sure to find some semantical (I made that word up) disagreement, pull it out of context, and we'll be in bizarro-world every time!

I read things on here all the time that, if I were to get super-technical, I could quibble with, including what you and Vern write. But I understand the milieu and recognize sometimes people speak colloquially. You know, like a conversation?

Don't get me wrong, I see the value of ensuring common interpretation and clarifying things that sometimes require more precise definitions. But there's a difference between that and claiming someone is misinformed, hasn't checked their facts, or has used erroneous reasoning just because they answered in a way that didn't use the exact words in the exact order that I would have preferred.

Let's let common sense, if not prevail, at least have a seat at the table.

And Don, believe me it's nothing personal. I appreciate your style and of course your knowledge! :):)

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Vern,

I must be misunderstanding you. We must be talking past each other. Assuming I’m understanding you correctly, I completely disagree.

I would never advise a CO to use some general reasoning for a modification when the specific reasoning is contained within that very contract.

Clauses are put into contracts because the parties anticipate things might come up that those specific clauses address. When one of those things does come up, we say, “ah, we have anticipated this and put this clause in the contract for precisely this reason.” Then, when we modify the contract, we cite that clause.

Now, if something comes up that wasn’t previously anticipated, maybe there is a clause in the contract that addresses it, maybe there isn’t. If there isn’t, then we rely on some means outside of the contract, such as statute or general contracting principles or whatever. But that is our second best option.

What I’m reading is that you think it’s “dead wrong” to cite the clause in the contract that addresses the very action you’re doing.

It sounds to me like you’re saying because the SF30 uses the word “authority” in section 13C, and because the authority to enter into bilateral modifications in commercial contracts technically doesn’t result from 52.212-4, it’s “dead wrong” to cite that clause in that box even though that clause was written and included specifically for this purpose.

It seems to me you're saying it’s wrong to cite the clause because it doesn’t technically comply with the strict, technical definition of one word in the instructions on the form? A form to which you even state you’re not sure why it was written that way? The form is a means to an end. I feel like we’ve totally lost sight of the forest for the trees again.

Wouldn’t it seem more reasonable to simply say you wish they would have used a word other than “authority” in block 13C rather than go against the plain basic intent and established best practices of contracting?

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onliberty:

I don't remember when last I encountered such intellectual artless dodging.

Since you apparently don't (or won't) understand plain English, I think the correct thing for me to say at this point is that you and I just disagree and that there is no ground for further communication between us on this topic. Perhaps not on any topic.

Don, my advice to you is to not waste any more time on this and to finish the article you owe me.

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I have been out in the field (literally) most of today. My point the other day was that the Changes clause isnt in a commercial service or commercial item contract. Your comparison with the Delay clause is moot.

As for Changes in a commercial contract with 52.212-4 in it, paragraph ( c ) doesn't "authorize" changes. It serves to limit the government to make only bilaterally agreed changes to the terms and conditions.

A government imposed delay wouldn't be an authorized change to the contract unless both parties agreed to it, including compensation for time and/or cost impacts. Oherwise, I'm guessing that it would be some type of government breach of contract, unless a delay clause were otherwise in the contract. A delay clause provides for an adjustment within the terms of the contracts without having to sue or be sued for a breach.

I should have added that 52.212-4 ( c ) not only requires mutual agreement, as opposed to the right of the government to order changes unilaterally, it requires written agreement, as opposed to oral agreement. While I am not a lawyer, this language appears to be an attempt to implement, in a way, the Uniform Commercial Code, paragraph 2-209 (2) in contracts for commercial items . Paragraph (2) discusses putting a no oral modification term in a contract and (I think) requires both parties to sign the written modification.

EDITED, 6/25/2015:

I have seen commercial item contracts in which the CO has inserted the changes clause from FAR 52.243-1 or one of the others In fact, I've seen that done on several occasions.

Vern, That doesn't necessarily mean that it is being inserted correctly, at least if they work for DoD. However, I think that the FAR, its supplements and guidance are fairly weak on describing such "customary commecial practices" as changing or modifying commercial contracts. I also didn't find anything indicating that 52.212-4 ( c ) could be deleted or replaced by a Changes clause. Thats not to say that there may be some guidance somewhere...

I don't think that deleting paragraph ( c ) and substituting a FAR changes clause that provides for unilateral change orders and allows unilateral definitization of change orders is consistent with customary commercial practices. Hetre is a link to a page at DAU discussing "Contract Modifications and Changes" at:

https://dap.dau.mil/acquipedia/Pages/ArticleDetails.aspx?aid=ad7f10df-7780-418c-a6fb-709c1014532c

Commercial Item Contracts. When using FAR Part 12 procedures for the acquisition of commercial items, the Government does not have authority to unilaterally require changes. The commercial item clause at FAR 52.212-4 , Contract Terms and Conditions -- Commercial Items, requires that both parties agree to changes in the terms and conditions of a contract. When this occurs, a supplemental agreement has been created.

Non-Commercial Item Contracts. The Changes Clause is the cornerstone of the Government’s ability to modify a contract for non-commercial items. It provides the Government with authority that is unmatched in private-sector contracting. This clause allows the Government to unilaterally make changes in the contract without requiring the contractor’s concurrence. Commonly used Changes clauses are:

Contracts for non-commercial items may be modified by use of a change order, which is a unilateral order signed by the contracting officer directing the contractor to make changes using the authority of the various Changes clauses. If the change order causes an increase or decrease in the cost of, or time required for, performance of any part of the work under the contract, the contracting officer must make an equitable adjustment in the contract price, the delivery schedule, or both.

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onliberty,

The CO has the authority to tailor FAR 52.212-4 to remove paragraph ( c ) pursuant to FAR 12.302. If a CO did purposely remove paragraph ( c ), why would a board or court apply to read it in via the Christian Doctrine?

Don, where does FAR 12.302 give the CO the authority to remove paragraph 52.212-4 ( c )? Please see the DAU page that I referred to above for modifications and changes.

EDIT: I suppose that one could do so with an approved waiver.

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joel,

FAR 12.302( a ) allows tailoring of FAR 52.212-4. A CO could tailor FAR 52.212-4 to be silent regarding changes if it were customary commercial practice or if a waiver were granted.

Don't think about it in practical terms. It was a hypothetical example used to make a point. All that matters is that it is possible.

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Vern... I don't think that deleting paragraph ( c ) and substituting a FAR changes clause that provides for unilateral change orders and allows unilateral definitization of change orders is consistent with customary commercial practices.

"Customary commercial practices" vary by industry and market. With how many industries and markets are you so intimately familiar as to know whether they include changes clauses in their contracts? I frankly don't think that your general assertion about customary commercial practices is very smart.

In any case, FAR 12.302( c ) allows agencies to waive the "customary commercial practices" condition in accordance with their own procedures.

The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures. The request for waiver must describe the customary commercial practice found in the marketplace, support the need to include a term or condition that is inconsistent with that practice and include a determination that use of the customary commercial practice is inconsistent with the needs of the Government. A waiver may be requested for an individual or class of contracts for that specific item.

See Crescent Helicopters, GAO B-284734, 2000 CPD ¶ 90 (May 30, 2000).

And what on Earth do you mean by "unilateral definitization"?

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I have a quick question for those more familiar with this topic than I am. The various Changes clauses that are used in contracts for non-commercial items permit the issuance of change orders within the general scope of the contract. It is my understanding that one of the purposes for this limitation is to avoid the situation where the government is acquiring supplies or services without obtaining competition. On the other hand, I see no language similar to "within the general scope" in 52.212-4. Does this mean that there is no limit on the type of change that can be agreed to by the parties under a contract for commercial items? In other words, are out of scope changes permitted in contracts for commercial items?

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No.

I think that the earliest GAO decision restricting the extent to which work could be added to a contract without competition was Comptroller General McCarl to the Secretary of the Interior, 5 Comp. Gen. 508, A-12445, January 21, 1926, which stated:

IN GENERAL, AN EXISTING CONTRACT MAY NOT BE EXPANDED SO AS TO INCLUDE ADDITIONAL WORK OF ANY CONSIDERABLE MAGNITUDE, WITHOUT COMPLIANCE WITH SECTION 3709, REVISED STATUTES, UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR. THE APPARENT PROBABILITY THAT THE ADDITIONAL WORK MAY BE DONE MORE CONVENIENTLY OR EVEN AT LESS EXPENSE BY THE ORIGINAL CONTRACTOR, BECAUSE OF BEING ENGAGED UPON THE ORIGINAL WORK, OR OTHERWISE, IS NOT CONTROLLING OF THE MATTER AS TO WHETHER THE PROVISIONS OF SECTION 3709 ARE FOR APPLICATION. WHETHER THE ORIGINAL CONTRACTOR CAN DO THE WORK AT LESS EXPENSE TO THE GOVERNMENT THAN CAN ANY OTHER CONTRACTOR IS POSSIBLE OF DEFINITE DETERMINATION ONLY BY SOLICITING COMPETITIVE BIDS AS CONTEMPLATED UNDER SAID SECTION

Capitalization in original. The decision makes no mention of a changes clause or the phrase "within the general scope of the contract."

I think that the clause language "within the general scope [of this contract]" originated in Bureau of the Budget Standard Form 23, issued November 19, 1926 for use in construction contracts. The Comptroller General's decision predated the clause and its language.

Since the original Comptroller General decision predated the language in the clause and made no mention of the clause or the phrase "within the general scope of the contract," it is clear to me that it was the statutory requirement for competition (Revised Statute 3709), not the clause language, that effected the restriction. I am virtually certain that the same would be true under CICA. Thus, I do not think that the absence of the "scope" language in FAR 52.212-4 permits out of scope changes to be made without competition or justification and approval.

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...In any case, FAR 12.302( c ) allows agencies to waive the "customary commercial practices" condition in accordance with their own procedures.

See Crescent Helicopters, GAO B-284734, 2000 CPD ¶ 90 (May 30, 2000).

I agree that one may obtain a waiver to customary commercial practices. I don't necessarily agree with saying "in any case", however. How do you know that an agenciy may waive the "customary commercial practices" condition in accordance with their own procedures. "in any case"?

Concerning Crescent Helicopters, the decision at hand discussed technical requirements or invoicing requirements that either didn't change the overall nature the services from "commercial" or that closely resemble commercial services ("of a type").

The RFP requirements, which are assertedly inconsistent with customary commercial practices, are not of such a nature as to transform the type of services sought here to something other than a commercial item. In this regard, we note that the FAR definition of commercial item speaks in terms of services of a "type" offered and sold in the commercial marketplace under standard commercial terms and conditions; it does not require that the services be identical to what offerors provide their commercial customers. Aalco Forwarding, Inc., supra, at 15-17. In fact, as noted below, similar requirements to those asserted to be inconsistent with commercial practice exist in commercial contracts. While, as discussed below, there is one requirement in the RFPs that may not be consistent with commercial practice, it is permissible for a commercial item solicitation to have noncommercial terms and still remain a solicitation for a commercial item.

The Decision primarily discussed technical requirements and invoicing procedures that the protestor said weren't consistent with customary commercial practices. The agency obtained a waiver for one technical requirement during the course of the protest.

As far as inconsistent "clauses" go, this wasn't germaine to the decision. The government responded to "a portion of the clauses" in its report and the protestor didn't provide any details in its initial protest or further discussion. The GAO deemed these issues as abandoned and didnt consider them further.

Note 2. The protester also lists in its protest 88 clauses that appear in the RFPs that it contends, without any further explanation, are inconsistent with customary commercial practice. Protest at 2-3. The agency responded in its report by examining a portion of the clauses to which Crescent objected, and noting and documenting comparable provisions found in various commercial contracts. Contracting Officer's Statement at 5. Since Crescent did not further discuss this contention in its comments responding to the report, we deem these issues abandoned and will not consider them further. International Management and Communications Corp., B-272456, Oct. 23, 1996, 96-2 CPD Para. 156 at 2-3 n.2.

Title VIII of FASA, Section 8002,. REGULATIONS ON ACQUISITION OF COMMERCIAL ITEMS states, in part (emphasis added):

( b ) Contract Clauses .—(1) The regulations prescribed undersubsection (a) shall contain a list of contract clauses to be included in contracts for commercial items the acquisition of commercial end items. Such list shall, to the maximum extent practicable, include only those contract clauses—
(A) that are required to implement provisions of law or executive orders applicable to acquisitions of commercial items or commercial components, as the case may be; or ( B ) that are determined to be consistent with standard commercial practice.

I said "I don't think that deleting paragraph ( c ) and substituting a FAR changes clause that provides for unilateral change orders and allows unilateral definitization of change orders is consistent with customary commercial practices". What does "to the maximum extent practicable" mean? Is it just words or is there a intent expressed that requires some judgement or limitation on waiving?

I readily admit that I don't know whether there are any areas of commercial practice for supplies or services that allow the customer to unilaterally direct changes to the terms and conditions of the contract or that allow the customer to unilaterally establish any adjustment to the price or time involved if the parties don't or can't mutually agree.

Actually, the Changes clause requires the KO to make an adjustment to the price or time if the change impacts them.

I have not formally studied Business Law or the U.C.C. since I took a night class in it at a local college back in 1983. I'm not aware of any such practice. I have not personally performed extensive market research into every industry or market that would be considered a commercial item.

I provided a link to a page at DAU discussing "Contract Modifications and Changes" at: https://dap.dau.mil/...fb-709c1014532c

I can see where the customer having the ability to unilaterally order a change to a vendor or manufacturer's standard product or service could cause problems and that it could impete interest or participation in the government's acquisition by commercial entities. You and I both know that there are many firms that won't have anything to do with government acquisitions due to the government's clauses, rules and/or regulations and/or red tape.

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And what on Earth do you mean by "unilateral definitization"?

The Changes clause would allow the KO to unilaterally definitize (establish) the adjustment to the contract by the change order.

From Black’s Law Dictionary:

definition of DEFINITIZATION (Black's Law Dictionary)

The final agreement or contract about a decision. It can be about cost or the scope of a project.

Note that a final agreement is not necessarily required for a "definitization" in the above definition.

From Black’s Law Dictionary:
Definition of DEFINITIZED ITEM: An element of a project that has been established.
thelawdictionary.org/definitized-item/

Note that the item or element doesn't necessarily have to be established bilaterally - at least from the above definition.

FAR Clause 52.243-1 -- Changes -- Fixed-Price requires that the KO adjust the contract price and modify the contract. It doesn't state that the adjustment has to be established by mutual agreement of the parties.

.

..( b ) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract.

FAR 43.204 -- Administration., (b ) "Definitization" requires KO's to negotiate equitable adjustments resulting from change orders in the shortest practicable time and provides for various procedures.

It doesn't address what happens if the contractor doesn't submit a proposal or if the parties can't reach an agreement.

Since, under the Changes clause, the KO "shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract", if it can't be done bilaterally, the KO must unilaterally definitize (establish) the adjustment to the contract by the change order.

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I agree that one may obtain a waiver to customary commercial practices. I don't necessarily agree with saying "in any case", however. How do you know that an agenciy may waive the "customary commercial practices" condition in accordance with their own procedures. "in any case"?

:lol: You misunderstood my use of "in any case." My bad. It's a careless expression that I've got to stop using. However, I did say "in accordance with [the agency's] procedures."

The Changes clause would allow the KO to unilaterally definitize (establish) the adjustment to the contract by the change order...

Since, under the Changes clause, the KO "shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract", if it can't be done bilaterally, the KO must unilaterally definitize (establish) the adjustment to the contract by the change order.

Thank you. Understood.

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