Jump to content
The Wifcon Forums and Blogs

Supra 1

Contracting Officer's obligation when issuing unilateral mod

Recommended Posts

Here is my situation:  On a firm fixed contract (construction project), after negotiations of what both parties (contractor and contracting officer) recognize is a change (differing site condition in this case),the parties cannot agree on price or time.  The contracting officer acknowledges during negotiations that the change did indeed extend the period of performance (i.e., impact to the critical path),  he/she issues a unilateral mod for what he/she believes is a fair price of the changed work. 

Question:  is he/she obligated to issue additional time to the period of performance based on what he/she believes is a fair amount of days as well? 

Thanks in advance.

 

Share this post


Link to post
Share on other sites

 They are not "obligated" unless that is what was negotiated.   You usually you give time but not money, however if circumstances warrant you can give both.

Share this post


Link to post
Share on other sites

The Differing Site Conditions Clause  (52.236-2) states, in part (emphasis added) :

Quote

”(b) ...If the conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performing any part of the  work under this contract, whether or not  changed as a result of the conditions, an equitable adjustment shall be  made under this clause and the contract modified in writing accordingly.

The KO has an obligation to make an equitable adjustment to the contract terms and conditions. If the KO recognizes that the DSC has affected the contractor’s time to perform the work, then the KO must decide whether or not to issue a time extension but must recognize that the contractor is entitled to additional time to complete the work.

 The KO should determine whether the delay is fully or partially concurrent with other government and/or contractor delays. If concurrent with contractor delays, then it (probably) becomes excusable but non-compensable.  If concurrent with other government delays, then it will be excusable and compensable. If non-concurrent with any other delays, then it will be excusable and compensable. 

The KO needs to determine whether or not circumstances will allow a slippage of the completion date for the work that has been delayed. If yes, then the KO should extend the completion date of that work and/or of the project completion.  

If, for some reason, circumstances don’t allow a slippage of the completion date, the KO can deny a time extension and require that the work be completed within the current contract period. However, this will likely create an “acceleration” of the project schedule to complete the impacted work without the time that is due the contractor.  If such an acceleration causes the contractor to have to expend additional cost, such as overtime, hiring additional resources, additional shifts, expediting delivery of materials, etc., then the contractor may claim or request an equitable adjustment for those additional costs and any other unavoidable impacts to either the changed or unchanged work affected by the acceleration. 

The short answer is that obligation of the government is to leave the contractor in the same position that it was when the differing site condition was discovered. 

You mentioned a price adjustment for the “changed work”.  The contractor may also be entitled to an equitable adjustment for any increased or decreased cost of the unchanged work impacted by the DSC.  Then, of course, also due an equitable adjustment for additional costs for a compensable time extension or acceleration costs due to a denial of an excusable time extension. 

Share this post


Link to post
Share on other sites

For references regarding my above post, please contact your friendly contract law attorney or read Administration of Government Contracts, Fifth Edition, By John Cibinic, Jr., James F. Nagle , Ralph C. Nash, Jr. (or any previous edition of that book).  Chapters 5 and 6 should cover it in detail.  There are many other textbooks that also cover it, as well as Boards of Contract Appeals Decisions.

Share this post


Link to post
Share on other sites
2 hours ago, Boof said:

 They are not "obligated" unless that is what was negotiated.   You usually you give time but not money, however if circumstances warrant you can give both.

????  That isn't what the clause says or requires. I don't know what is usual for you, Boof, but it wasn't "usual" for me to "give time but not money" for impacts due to a differing site condition..

Share this post


Link to post
Share on other sites

Moved to another venue. 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

×