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khunron

Authority to Extend Period of Performance on A-E Task Order – Government Delay

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Was the Facility Manager's cancellation of the site survey a constructive change? Joel says, "Probably not," but he doesn't say why he thinks so. I think the Facility Manager's act meets the tests of constructive change described in Administration of Government Contracts, 4th ed., pp. 428 - 431, by requiring the contractor to change its performance plan.

Vern, I said "probably not" because I don't think that the date of the "initial site survey" was in the A-E contract. Im guessing that the site survey was probably postponed - not deleted - because the facility manager couldn't meet the scheduled date. Although the OP didn't explain in detail, it appears to be a government caused delay ( under paragraph ( b ) of 52.242-14, Suspension of Work) rather than a change in the contract requirements. I would agree that the delay may have affected the A-E's schedule but I doubt that it "changed the delivery plan" other than delaying delivery. Of course, it depends upon the actual facts, as I did say.

At any rate, I don't otherwise, necessarily disagree with you last post. I doubt that the government would terminate the A-E for being two weeks late on a design deliverable. It would take longer than that to do the default and get the work done by others. The A-E probably wants to be on the record as being timely. That is one of the major performance rating factors that it wants to be shown as meeting or exceeding. If there are extra costs involved, I imagine the parties will work that out. I didn't t see the cost as an issue in the OP's initial or second post - he/she was just looking for the authority to extend the PoP.

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This scenario reminds me of many challenges over my career dealing with military and civilian government employees' ignorance or nonchalant attitudes toward the consequences and costs of their actions, inactions or interference with government contractors who were just trying to do their jobs. They either didn't know or didn't care that they were wasting the Taxpayers' money (borrowed money?) by interfering with efficient contract performance.

During my first year as a civilian employee with the Corps of Engineers, I was project engineer on a construction project on the airfield at Columbus Air Force Base, MS. I won't get into too many background details but one afternoon during the contract, the Air Force O-6, Deputy Commander for Aircraft Maintenance (DCM) directed that the Security Police provide him, every afternoon, a list of every employee that would be working the next day on the Base. Having been an Air Force Officer myself, I knew that the Deputy Commander for Operations (DCO), not Maintenance, had jurisdiction over the Airfield and he had no problems with my contractor. This was going to be aa big problem for my contractor.

I called the Colonel and explained to him that he was impacting my contractor and had no authority over the project area or the airfield. He basically said that he could do whatever he wanted. I told him that if the contractor submitted a claim for extra costs, I would make sure that he was held personally accountable for every additional penny that it cost the taxpayers. Of course he went ballistic, with a barrage of unrepeatable expletives and said that he was going up the flagpole with threats. I calmly bluffed that I would also go up our flagpole to the Three Star, Chief of Engineers and that it would still come back down to him... He slammed the phone down.

I immediately called my civilian boss downtown and explained what happened and asked if I was in deep doo-doo. After he asked and I assured him that I didn't cuss the Colonel (this is the South, after all), he said that he would back me up. He was formerly a WW 2, B-29 Radar Navigator who also had little use for blowhard Colonels, who abuse their authority. We never heard a peep back from the Air Force and the Colonel cancelled the directive to the SP's. I told my contractor how I stuck my neck out for him and that he better abide by every base regulation to the T- which he did, to his credit. No more probs on that job.

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I want to just say that I have been more of a reader of the posts on WIFCON than actually responding to posts. I hope to change this in the future. Having said that, I have appreciated the responses from Vern that I have seen over the years. In order to survive while working in the Government contracts profession, you must be open to the advice of professionals who have been in this business for many years. You have to be able to throw away the perception that someone with more knowledge than you is trying to make you feel small when rendering their opinion. You have to continuously grow and learn. I have been involved in Government Contracting since 1986, hold 2 certifications from NCMA, and would not have survived this long if it were not for the efforts of the professionals on this website to keep our profession moving forward. If you look at the responses Vern has graciously offered over the years, you can see he is trying to move us to clarify the questions. Yes, we know that means getting a response from Vern that may rub one the wrong way. But this is not what he is trying to do, he is tying to make us think before we act, he is trying have us learn something. There are better ways of responding to people that you feel rub you the wrong way. If your customer, contractor, or subcontractor rubs you the wrong way I am sure the response would not be such as what was provided to Vern.

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