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Additional Work In Scope (Fee Bearing?)

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Working in a CPFF environment where we have a PWS that is sometimes a little broad.  If there is additional work that is requested, not originally planned, but determined to be "in scope," I'm looking for some basis to determine if the additional work should/could be Fee bearing?  One party believes since we are in a cost environment additional cost can be requested for the additional work, but as it is in scope, it should not be subject to fee.  Other party believes the opposite that just because it's in scope, does not automatically preclude the additional costs from being subject to additional fee.  Thoughts?  Thanks!

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52 minutes ago, Anonymous2019 said:

One party believes since we are in a cost environment additional cost can be requested for the additional work, but as it is in scope, it should not be subject to fee.

This party is wrong. Take this statement to its absurd conclusion. 

If this were true, any possible (in scope) changes according to the Changes clause would never result in additional fee. The government could bloat the cost, constantly modify for additional work, and never pay the contractor any additional fee. 

52 minutes ago, Anonymous2019 said:

Other party believes the opposite that just because it's in scope, does not automatically preclude the additional costs from being subject to additional fee.

This party is correct.

Certain changes according to the Changes clause are in scope, but these changes can result in additional fee.

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Is FAR 52.243-2 included in your contract? Did your customer issue a change notice? Is it within the general scope of type changes permitted by 52.243-2? If not, how do you contemplate the additional work is requested? Can we assume you or the other parties are not talking about funding or reimbursable costs? Is the only concern whether there should be an increase in the estimated cost and fixed fee?

Is this just a hypothetical?

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1 hour ago, Anonymous2019 said:

If there is additional work that is requested,

What do you mean by "requested?"  Are you saying that the contract is not being modified?

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Maybe, maybe not.  It depends.

My starting point is usually “No,” and then we go from there.  The reason for the initial “No” is for situations where someone asks a question wanting a particular answer and without providing enough facts and without continuing to engage to respond to questions.  I hope this original poster isn’t one of them.

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3 hours ago, Retreadfed said:

What do you mean by "requested?"  Are you saying that the contract is not being modified?

All the more reason to say “No.”

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Thank you for the replies.  So I am working with a Government customer who believes that any additional work that is determined to be within the overall scope of the effort is not fee bearing and I'm looking to see if there is any specific reference I can point to that would help defend my case that in many times we should be allowed additional fixed fee in accordance with the contract or task order.  When I talk about "additional work" I'm referring to an additional study or just additional resources that have already been covered in the scope.  For instance if we have 2 people working on an effort and the customer has more work that originally anticipated and now we need 2 additional staff to support the work this doubles our original anticipated cost, but the scope remains unchanged.  

The other side of this is to try and address this during the proposal process where we make assumptions but many times it's hard to assume all scenarios, that's why we are in a cost environment in the first place.  

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17 minutes ago, Anonymous2019 said:

For instance if we have 2 people working on an effort and the customer has more work that originally anticipated and now we need 2 additional staff to support the work this doubles our original anticipated cost, but the scope remains unchanged. 

You need to contact an experienced government contracts attorney concerning this.  There are many possibilities concerning this one example.  In some circumstances, you may be entitled to an equitable adjustment because of a constructive change.  In other cases, you may simply have to perform the additional work at cost.  It all depends on the facts.  I don't think you can provide all the facts here that would be needed to give you an answer.  I suspect that a lot of document review will be in order along with a lot of questions.

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Retreaded gives excellent advice.  We can’t advise you here without lots more information.  Plus you need to be clear with what you mean by “additional work” and “in scope”.  For example if you need four people than two to do the original work, that might be a cost overrun and not fee bearing.  You might get the additional costs but no more fee.  On the other hand, a new report the government requests might be fee bearing.  A lot of stuff needs examined to decide.

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Is the “additional work” and price being negotiated and agreed to by the parties?   YES     NO 

Is the contract being bilaterally modified each time?     YES     NO

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On 4/26/2019 at 1:17 PM, Anonymous2019 said:

Working in a CPFF environment where we have a PWS that is sometimes a little broad. 

 

If there is additional work that is requested, not originally planned, but determined to be "in scope," I'm looking for some basis to determine if the additional work should/could be Fee bearing?

...Other party believes the opposite that just because it's in scope, does not automatically preclude the additional costs from being subject to additional fee.  Thoughts?  Thanks!

Sorry but your question is VERY broad and not well defined or described. 

You said "there is additional work that is requested"  What do you mean by "additional work"?   How is it  "additional" - additional to what?   And how is it "requested"?

How is the work "not planned"?  Or to put it another way - How is the work "planned"?  Not "planned" by whom? By the contract?  By you?

What specifically do you mean when you said  "[the work] is determined to be in scope".  For instance, is  the type of work to be performed the same type of work described and required to be performed? 

 

17 hours ago, Anonymous2019 said:

For instance if we have 2 people working on an effort and the customer has more work that originally anticipated and now we need 2 additional staff to support the work this doubles our original anticipated cost, but the scope remains unchanged.  

We don't know what you mean by "the customer has more work [than] originally anticipated".  What do you mean by "more work" and "originally anticipated"  Is the work in addition to work that was described in the performance work statement or other contract requirement?   Who or what originally anticipated the quantity of work?   

How is the amount of work to be performed identified or to be identified by the contract requirements?

All of those points matter as to whether or not additional fee is warranted on a CPFF environment.

 Generally speaking, the fee is fixed, unless there is a change to the actual contract requirement. What the actual contract requirement is, of course, sometimes subject to the rules of contract interpretation.

That is why we are seeking clarification of your scenario. 

 

 

 

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