Jump to content
The Wifcon Forums and Blogs
CountryTime

One Mod - Two Authorities

Recommended Posts

What are your thoughts on a modification to a commercial PO to enact a slight reduction in service for remaining options (52.212-4(c) as the authority) and, in the same mod, exercising the first option period citing 52.217-9 in the verbiage of the mod?  Essentially citing two authorities in the same modification.  

Share this post


Link to post
Share on other sites

I would not check two boxes in block 13 of the SF-30, but there is nothing wrong with putting two citations inside the checked box.

On a side note, is the "slight reduction in service" really a partial termination for the Government's convenience?

Share this post


Link to post
Share on other sites

Not only is there nothing wrong with it, I’d say it’s mandatory if you/your agency has determined that citing an authority is warranted in the first place. 

 

Authority not cited –

Doesn’t change the validity of the mod.

 

Authority cited –

Doesn’t change the validity of the mod.  But it could help the parties understand what’s going on.  So if you’re going to cite an authority, why wouldn’t you cite all applicable authorities?

Share this post


Link to post
Share on other sites
7 hours ago, jwomack said:

Not only is there nothing wrong with it, I’d say it’s mandatory if you/your agency has determined that citing an authority is warranted in the first place. 

 

Authority not cited –

Doesn’t change the validity of the mod.

 

Authority cited –

Doesn’t change the validity of the mod.  But it could help the parties understand what’s going on.  So if you’re going to cite an authority, why wouldn’t you cite all applicable authorities?

 Unless your contracting software system doesn’t permit it, I think it is a good practice to cite each applicable authority for a modification. An example would be a time extension involved with a government suspension of work for the convenience of the government  The Defaults clause authorizes the time extension.

 The contracting software might not allow you to check two separate boxes on the SF 30. In that event, I would also agree that the authorization should be described in the body of the modification.

Share this post


Link to post
Share on other sites

52.212-4(c) - Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

Full disclosure: I love this paragraph, and use it often.  It may be my favorite sentence in the FAR.  That said, this authority offers no clues about what is changing or why, so you really do need to explain things elsewhere on the modification.   

Putting all the relevant authorities on the SF30 is a good idea.  I'm going to start doing that.

 

 

Share this post


Link to post
Share on other sites

Why do people think that FAR 52.212-4(c) is an "authority" to execute a bilateral contract modification? Do people think that if that paragraph were not in the contract, the contracting parties would not be able to bilaterally modify the contract? 

Share this post


Link to post
Share on other sites

I don’t think 52.212-4(c) is an “authority” but see no harm in citing it as it helps demonstrate the mod was subject to bilateral approval.  If I felt it was necessary to cite a true authority it would be 1.602-1.

Share this post


Link to post
Share on other sites
4 hours ago, Don Mansfield said:

Why do people think that FAR 52.212-4(c) is an "authority" to execute a bilateral contract modification? Do people think that if that paragraph were not in the contract, the contracting parties would not be able to bilaterally modify the contract? 

The mod is being executed as a “change” in accordance with .212-4:c).

Share this post


Link to post
Share on other sites
4 hours ago, Don Mansfield said:

Why do people think that FAR 52.212-4(c) is an "authority" to execute a bilateral contract modification? Do people think that if that paragraph were not in the contract, the contracting parties would not be able to bilaterally modify the contract? 

Interesting question.

1. What would you cite instead in the situation?

2. What are your thoughts on contracting officers citing FAR 43.103(a) or 42.103(b)? That's related to your question. Those two FAR citations are descriptive. They describe unilateral and bilateral modification. Those two FAR citations should not even be found within the contract, and are usually not found within the contract. Yet PepeTheFrog sees them cited as the "authority" on many modifications. 

3. What do you think about citing "mutual agreement of the parties" as the "authority"? That also seems hollow or superfluous. Aren't the two parties memorializing their mutual agreement by their respective signatures? 

Share this post


Link to post
Share on other sites

Sometimes, mutual agreement of the parties is a good reason.

Share this post


Link to post
Share on other sites
2 hours ago, ji20874 said:

Sometimes, mutual agreement of the parties is a good reason.

Mutual agreement of the parties is a requirement for a supplemental agreement. It isn’t a “reason” or the authority for or justification to provide a price adjustment or equitable adjustment and/or time extension. 

Share this post


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

Interesting question.

1. [ ]

2. What are your thoughts on contracting officers citing FAR 43.103(a) or 42.103(b)? That's related to your question. Those two FAR citations are descriptive. They describe unilateral and bilateral modification. Those two FAR citations should not even be found within the contract, and are usually not found within the contract. Yet PepeTheFrog sees them cited as the "authority" on many modifications. 

3. What do you think about citing "mutual agreement of the parties" as the "authority"? That also seems hollow or superfluous. Aren't the two parties memorializing their mutual agreement by their respective signatures? 

2. FAR 43.103(a)  is  merely a description of types of modifications. FAR 42.103(b) concerns audit offices(????). They have nothing to do with justifying why the government is modifying the contract.

3.  See my last post.

Also- Part of of my job as Chief of Contract Administration in several assignments was oversight of Contract Administration in ACO offices for the KO. We wanted to know, for the record, why contracts were being modified.

And, occasionally, KO’s issued mods for the wrong reason. Helped us figure out what happened during the contract performance, when we had to straighten out messes later or close out contracts after everyone else was gone.

It was useful for forensic purposes in resolving claims and other contract problems. 

Merely citing “mutual agreement of the parties” is superfluous to the fact that the mod is bilateral, is a waste of words and doesn’t justify why the mod was appropriate or necessary. 

You might as well say something like “the contractor wanted us to modify the contract and we agreed”. It would be just as meaningless and just as stupid. 

See, for example https://www.acq.osd.mil/dpap/ccap/cc/jcchb/Files/Topical/Modifications/training/mod_training_opscons.pptx

Good contract administration practices provide record information for others not directly involved. When contractor personnel or government personnel retire or are re-assigned others have to be able to pick up the pieces or take over contract admin. 

Those  teaching in the “Defense Acquisition University” should know and understand that. 

Share this post


Link to post
Share on other sites

We are hired to be good stewards of the government and of the taxpayers.  We need to be accountable for our actions. 

Dont tell me you did something because you had the authority to do it or because both parties agreed to do it. Thats not a reason, or justification for doing it and says NOTHING. 

Share this post


Link to post
Share on other sites
4 hours ago, jwomack said:

I don’t think 52.212-4(c) is an “authority” but see no harm in citing it as it helps demonstrate the mod was subject to bilateral approval.  If I felt it was necessary to cite a true authority it would be 1.602-1.

Wouldn't the two signatures on the modification and the check in block 13C make that obvious?

2 hours ago, joel hoffman said:

The mod is being executed as a “change” in accordance with .212-4:c).

True, but that doesn't answer my question. Why do people think that it's an "authority"?

2 hours ago, PepeTheFrog said:

Interesting question.

1. What would you cite instead in the situation?

2. What are your thoughts on contracting officers citing FAR 43.103(a) or 42.103(b)? That's related to your question. Those two FAR citations are descriptive. They describe unilateral and bilateral modification. Those two FAR citations should not even be found within the contract, and are usually not found within the contract. Yet PepeTheFrog sees them cited as the "authority" on many modifications. 

3. What do you think about citing "mutual agreement of the parties" as the "authority"? That also seems hollow or superfluous. Aren't the two parties memorializing their mutual agreement by their respective signatures? 

1. Why would I have to cite an authority at all?

2. I think contracting officers who cite FAR 43.103(a) or (b) as an "authority" do so because they are either not thinking about what they are doing or are placating somebody.

3. I think contracting officers who cite "mutual agreement of the parties" as an "authority" do so because they are either not thinking about what they are doing or are placating somebody.

Share this post


Link to post
Share on other sites
5 hours ago, Don Mansfield said:

it helps demonstrate the mod was subject to bilateral approval.

5 hours ago, Don Mansfield said:

Wouldn't the two signatures on the modification and the check in block 13C make that obvious?

 

No.  Two signatures don’t always indicate the mod required bilateral signatures to be binding.  Sometimes contractors sign when they don't need to or weren’t asked to…presumably as a gesture to show they received the mod and don't have a problem with it.  Also, selecting 13C requires completion of a fill-in.  “This supplemental agreement is entered into pursuant to authority of: ________”.  Leaving the fill-in blank wouldn't make sense.

 

On the other hand, if 13A-D were not selected and 13E "is required to sign" is selected then it would be self-evident that bilateral signatures were required.

Share this post


Link to post
Share on other sites

The preferred authority citation is a clause in the contract.  But sometimes, there isn’t a specific clause that can be pointed to, and yet the modification is still legal and honorable.  In those cases, agreement of the parties might be the best one can do.  I’ve done it.  I never used a FAR 43 citation, but FAR 1.602-1 might work.

Here’s a question for everyone who objects:

As an example, in a contract for commercial items, the contract calls for 100 EA white items for delivery in 60 days.  Shortly after award, the parties agree to 33 white, 33 red, and 34 blue in 45 days.  That’s legal and honorable, right?  Everyone is happy.  What is the authority for block 13 of the SF-30?

Share this post


Link to post
Share on other sites
10 hours ago, Don Mansfield said:

1. Why would I have to cite an authority at all?

Because the form asks for one and due to poor workforce education programs, some reviewer is going to mark up the organization during an inspection for not citing an authority or citing the wrong authority (in his/her opinion).  That may seem silly, but it's the reality in many organizations which is why someone started this thread in the first place - they don't want to make a mistake.

Share this post


Link to post
Share on other sites
On 3/7/2019 at 1:25 PM, Don Mansfield said:

Why do people think that FAR 52.212-4(c) is an "authority" to execute a bilateral contract modification? Do people think that if that paragraph were not in the contract, the contracting parties would not be able to bilaterally modify the contract? 

Its rather that -4 is a commercial clause, and many contracts I deal with are commercial have no other terms and conditions covering changes/modifications.

Its a simple way of dealing with the authority issue, and moving on to the more important stuff, such as the substance of the modification.

 

Share this post


Link to post
Share on other sites
9 hours ago, jwomack said:

 

No.  Two signatures don’t always indicate the mod required bilateral signatures to be binding.  Sometimes contractors sign when they don't need to or weren’t asked to…presumably as a gesture to show they received the mod and don't have a problem with it.  Also, selecting 13C requires completion of a fill-in.  “This supplemental agreement is entered into pursuant to authority of: ________”.  Leaving the fill-in blank wouldn't make sense.

 

On the other hand, if 13A-D were not selected and 13E "is required to sign" is selected then it would be self-evident that bilateral signatures were required.

Why can't you select block 13C and 13E?

5 hours ago, Matthew Fleharty said:

Because the form asks for one and due to poor workforce education programs, some reviewer is going to mark up the organization during an inspection for not citing an authority or citing the wrong authority (in his/her opinion).  That may seem silly, but it's the reality in many organizations which is why someone started this thread in the first place - they don't want to make a mistake.

Probably right. If people like @General.Zhukov do it for that reason, then I don't have a problem. I'm more concerned about the newbies who are being taught that a clause must be cited for a bilateral modification.

Share this post


Link to post
Share on other sites
On ‎3‎/‎8‎/‎2019 at 5:34 PM, Don Mansfield said:

Why can't you select block 13C and 13E?

You can and probably should if you want to be clear as to what's going on. 

Share this post


Link to post
Share on other sites

For those who think that the contracting officer or an ACO has unfettered authority to make a bilateral modification and/or simply cite as authority for the mod the KO’s warrant number or “bilateral agreement of the parties”: 

What happens if a contract clause or other contract term clearly assigns risk to the contractor for a certain type of cost, the contractor asks for a modification to cover that cost and the contracting officer or ACO agrees,  contrary to the specific contract terms and conditions? The KO states on the SF 30 that the authority for the modification is bilateral agreement of the parties. Does the KO have that authority?

Example:  An excusable but otherwise non-compensable time extension due to unusually severe weather is granted pursuant to the Defaults clause and the contracting officer or ACO decides to pay daily overhead costs and profit, as requested by the Contractor. Does the KO have that the authority to do so and simply state that “bilateral agreement of the parties” is the authority? 

Example: contractor asks for profit on costs due to a directed suspension of work for the convenience of the government and the contracting officer agrees to include profit. Does contracting officer have the authority to change the contract under the authority of bilateral agreement of the parties, again assuming that no other clause or contract term is properly applicable than 52.242-14 Suspension of Work?

Example: Contractor destroys a fence on private property immediately adjacent to a Civil Works project site for flood protection enhancement in a nice neighborhood. The ACO issues a MOD to pay for replacing the fence. The new fence is actually much more elaborate and costly than the original fence. Contractor also destroys concrete sidewalk next to the fence and the ACO pays the contractor to replace the sidewalk. The damage was purely due to negligence by the contractor. In addition to standard clause 52.236-9 “Protection of Existing Vegetation, Strucures, Equipment, Utilities, and Improvements”, the technical specs also assign the responsibility for damage to the Contractor. Does the Contracting Officer have that authority to change the contract, again citing bilateral agreement as the authority?

:Example: Contractor  accidentally but negligently floods a utility tunnel under construction by another Contractor. KO pays tunnel contractor for damages. Contract clearly assigns responsibility to the first contractor. KO doesn’t attempt to recover damages from first contractor. 

I could cite other similar examples, all of which were actual mod events. The “Changes” clause was typically cited as the “authority” for the mods. 

 

 

Share this post


Link to post
Share on other sites

Joel,

May I ask you to respond to my question?  You (and Don) and telling readers not to use agreement of the parties, but you aren't telling them what they should use instead.

In a contract for commercial items, the contract calls for 100 EA white items for delivery in 60 days.  Shortly after award, the parties agree to 33 white, 33 red, and 34 blue in 45 days.  That’s legal and honorable, right?  Everyone is happy.  What is the authority for block 13 of the SF-30?

Share this post


Link to post
Share on other sites
1 hour ago, ji20874 said:

 What is the authority for block 13 of the SF-30?

Not that you asked me, but focusing on the OP’s question (2 citations or not) here’s what I would cite.  This assumes the red/white/blue are severable:

 

52.212-4(l) (partial termination) for the reduced quantity of white.  This gives me contractual assurance that I’ll get the white items.

And

1.602-1 for the new red and blue items.  This citation helps to illustrate this aspect is outside the scope of the contract and is only an offer.

 

---

 

If only 1.602-1 (or similar) is cited and you ask for bilateral signature, it could be implied or interpreted that you’re giving the contractor a choice regarding the white items.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×
×
  • Create New...