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Guest Vern Edwards

Don: I meant "not." And ji is right that even with a release the contractor could try to get an adjustment. Not likely to be successful unless there was a mistake.

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I'm not saying the contractor is entitled to nothing.  However, I am saying that a request for equitable adjustment under the changes clause at FAR 52.243-1 should be denied for the case of the original posting, because that clause only contemplates equitable adjustments following unilateral change orders -- and apparently there have been no unilateral change orders.  Rather, the contractor is seeking the payment of money or an adjustment in contract terms, or other relief arising under or related to the contract -- thus, a claim under the Disputes clause seems to be the correct approach.  That's my first principal point in this thread.

Will the contractor win its claim?  Maybe, maybe not.  But at least in that case, the contracting officer's final decision will be based on the evidence and facts substantiated within the claim.

Joel, the document you linked to makes my point very well -- thanks!  There is a general presumption that a contractor's signature on a supplemental agreement indicates its agreement to the text of the agreement, including the small print in block 14 of the SF-30 (absent an explicit reservation of rights or striking the small print) -- that presumption can be overcome in limited cases, as Joel's document mentions, but the general presumption stands as a valid general presumption.  That's my second principal point in this thread.  In is claim, the contractor can point to the evidence that its signature on the supplemental agreements was coerced or somehow impaired, and/or that the Government took unfair advantage somehow.  If I was the contracting officer and the contractor made such a showing enough to overcome the general presumption, or made a case for a mutual mistake, I might agree and grant the claim.  But I wouldn't mis-use the Changes clause to reform the contract.  And I wouldn't automatically assume that the contractor is entitled to the money it seeks.  And I wouldn't automatically assume that the small print in block 14 of the SF-30 has no meaning -- that small print has to be interpreted in a way that gives it some meaning.

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Guest Vern Edwards
1 hour ago, ji20874 said:

Don't you agree that a contractor's signature on a bilateral contract modification generally indicates its agreement with the text?

I agree with that. But everything will depend on what the text says.

The description of the case was not detailed or clear, and the issue seems very complicated.

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ji, that small print will have little bearing on whether the contractor can prevail in an impact claim or REA. Without evidence of full accord and satisfaction and/or a release statement, where the contractor has specifically stated that the cumulative effect of the changes that greatly increased the workload are impacting the ability and cost to perform, it might be able to win a claim if the REA is denied. 

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Guest Vern Edwards

My thought is that if the parties modified the contract by supplemental agreement, and if there was no failure of consideration, then it's binding. Now if the contractor comes back and wants money in addition to whatever else it got in the mod, and if the Government argues that the mod sealed the deal, under what theory would the contractor seek additional compensation?

A demand for contract reformation is unlikely to be successful if the contractor cannot show that there was some kind of mistake that warrants reformation. I would not think a unilateral underestimate of the cost impact would be sufficient.

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1 hour ago, Vern Edwards said:

My thought is that if the parties modified the contract by supplemental agreement, and if there was no failure of consideration, then it's binding. Now if the contractor comes back and wants money in addition to whatever else it got in the mod, and if the Government argues that the mod sealed the deal, under what theory would the contractor seek additional compensation?

A demand for contract reformation is unlikely to be successful if the contractor cannot show that there was some kind of mistake that warrants reformation. I would not think a unilateral underestimate of the cost impact would be sufficient.

One theory would be if there was a lack of total agreement concerning the impacts or possible impacts and if the contractor reserved its rights to seek additional compensation for those impacts.  The OP said: "The contractor signed each SF30 without a price proposal, but all along he was corresponding with the PCO and COR that he felt the contract scope was creeping larger and larger and as a result he was facing cost impacts he hadn't anticipated."

We don't know the details or the timing of the contractor's signature.  We do know that the government set the terms, the contractor signed the mods and at some point raised the issue of scope creep and unanticipated cost impacts.  What does"all along" mean and when did "all along" begin, for example? Did the government respond to the issues or ignore them?  The specific facts might support a successful claim or not.

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Guest Vern Edwards
13 hours ago, joel hoffman said:

"all along he was corresponding with the PCO and COR that he felt the contract scope was creeping larger and larger"

Maybe the mods were followed by constructive changes. Maybe the mods are not the issue. Maybe subsequent constructive changes after the mods are the issue.

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4 hours ago, Vern Edwards said:

Maybe the mods were followed by constructive changes. Maybe the mods are not the issue. Maybe subsequent constructive changes after the mods are the issue.

Maybe so

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Anybody ever done a solicitation where the offeror needed to discuss how it would handle the inevitable changes that would occur post-award? Was that an evaluation factor/sub-factor?

Seems important.

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