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On 12/17/2021 at 11:19 AM, Don Mansfield said:

I see a new safety requirement for anyone entering a Government facility as an act of the Government in its sovereign capacity. I'm not sure this would necessarily require a contract modification.

It is impossible to evaluate Don's thought without some argument from him. What kind of act is a "sovereign act"? Why does he "see" the new safety requirement as a sovereign act?

I suggest that we wait until he explains his thinking.

Here is some background to the sovereign acts doctrine, pages 277 - 283.

https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1318&context=oclj

See this, too, for general background, though it's a little old.

https://apps.dtic.mil/sti/pdfs/ADA254270.pdf

And this.

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4742&context=uclrev

More up-to-date articles may require a subscription to the publication.

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12 hours ago, Don Mansfield said:

I wasn't referring to the specific EO. I meant if the Federal Government were to mandate vaccinations for anyone to gain access to a Federal facility.

Thanks for the clarification, in my re-read I see that I missed that clarifying point - "anyone".

I was schooled by my kids the other day.   They remain loyal fans to their alma mater and travel to fall football games.  Oregon State University.  They shared, and I did not realize, that to enter the stadium they must show ID and their vaccination card.   No card, no entry.   The rest of my Q & As  did elude to some interesting inconsistencies but all the same a requirement of entry for "anyone". 

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On 12/18/2021 at 8:48 AM, Vern Edwards said:

It is impossible to evaluate Don's thought without some argument from him. What kind of act is a "sovereign act"? Why does he "see" the new safety requirement as a sovereign act?

I suggest that we wait until he explains his thinking.

You’re right, I have been too hasty in this thread.  These days I don’t think I am alone in my overly pragmatic thinking, but my jumping to a conclusion that an idea is “brilliant” and then having to defend that conclusion from scrutiny afterwards in the same forum is just not ideal.

I await Don and others’ arguments to fully flesh out our hypothetical revision to this disastrous EO.

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On 12/17/2021 at 9:41 AM, ji20874 said:

Same as for imposing a new badging and background check requirement, right?

So you're saying you could change the required clearance level after award from Secret to TS/SCI as a unilateral action and assume no cost or schedule impacts?

The issue with the COVID mod which makes it different is that it's not based in law, but rather an EO issued on a legally questionable basis.

I think the EO would be the mod authority.  That's the sole reason the COVID mod exists and why we're even having this conversation.  It's certainly one of the weirdest clauses ever: the language basically says "go to this website".

 

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REA'n Maker,

I assume your comment was addressed to me?

If so, you need to re-read my comment which you partially quoted.  It is unfair to twist another person's words, to change the context, and to react only to a portion of the other person's comments.

If you will re-read my comment which you partially quoted, you will see your error.  I said nothing about changing from Secret to TS/SCI.  And even if I did, I clearly allowed for an adjustment to contract price and other terms.  So, I said nothing of the sort that you suggested.  I shouldn't have to answer your question, which is based on faulty reading.  For shame.

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ji20874 said:

I'm bored at the moment, so I'm going to explain the preceding REA'm Maker/ji20874 communication:

On 12/17/2021 at 6:41 AM, ji20874 said:

I can see an argument for a change order under the Changes clause as being within the general scope of the contract.  In order to enter the Government facility or otherwise interact with Government employees, the contractor's employees have to meet the Government's new facility security and safety access standards.  And, with a change order, the contractor can afterwards assert a right to an adjustment in contract price or other terms as appropriate.

Same as for imposing a new badging and background check requirement, right?

Note the reference to the Changes clause, which expressly provides for an equitable adjustment if a change causes an increase in the cost or time required for performance,

To which REA'n Maker (apparently) responded:

19 hours ago, REA'n Maker said:

So you're saying you could change the required clearance level after award from Secret to TS/SCI as a unilateral action and assume no cost or schedule impacts?

REA'n Maker's comment does not make sense. ji20874 clearly did not say what REA'n Maker suggests that he said. He did not say that a CO changing a security clearance level from Secret to Top Secret/Sensitive Compartmented Information could assume no cost or schedule impact.

REA'n Maker hurt ji's feelings and should apologize or clarify. It he'd done that to me, I would have resorted to ridicule. 😈

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20 hours ago, REA'n Maker said:

The issue with the COVID mod which makes it different is that it's not based in law, but rather an EO issued on a legally questionable basis.

@REA'n MakerAssuming that the E.O. you referred to is 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, it expressly states that it is grounded on the president's authority under 40 U.S.C. § 101 et seq. and 3 U.S.C. § 3. Those are laws. No court has yet held that it is not properly grounded in those laws. The only court actions that I know of against it are preliminary injunctions pending a court decision. Why do you say it's legally questionable?

What are you talking about?

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I have a problem with this:

On 12/22/2021 at 2:08 PM, REA'n Maker said:

I think the EO would be the mod authority.  That's the sole reason the COVID mod exists and why we're even having this conversation.

This is essentially saying, “My boss told me I could insert this new requirement.”  It is not a modification authority that exists in the contract.  The purpose of this field on the SF 30 is to cite what makes the CO think the Contractor signed up for the unilateral mod action at award.  Per the SF 30 instructions: “Item 13. Check the appropriate box to indicate the type of modification. Insert in the corresponding blank the authority under which the modification is issued. Check whether or not contractor must sign this document. (See FAR 43.103.)”

When you go to FAR 43.103, you find this to be relevant:

“Unilateral modifications are used, for example, to…

(2) Issue change orders; 

(3) Make changes authorized by clauses other than a changes clause (e.g., Property clause, Options clause, or Suspension of Work clause)”

In ji’s proposal we want to issue a change order and definitize it later (terms of art used in FAR 43.204).  This FAR Subpart, titled "Change Orders", then prescribes all clauses designed for issuing change orders at FAR 43.205.

If we plan to pay the cost effected by the change order via supplemental agreement later (e.g., after the total hours of time off for personnel to get vaccinated is finalized), then we should choose from whichever of these clauses is in the contract before we go citing the broader EO as authority.

Edited by WifWaf
Fixed for Vern
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4 hours ago, WifWaf said:

Unless the Government is acting in its sovereign capacity, the CO cannot do that to our industry partner just because a law was enacted.

WifWaf, I know that you strive to be thoughtful, so maybe you should explain yourself or, perhaps, rethink that sentence.

In fact, perhaps you should reconsider your entire post. What should follow from critical thinking is clear expression.

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@WifWaf

Typically, authority to change a contract follows basic sources of authority to contract: constitutional, statutory, regulatory, and delegated [actual] authority (including contract terms and conditions). When a contract is formed the authority to make changes is narrowed, but surely the authority to change a contract need not only be based on a Sovereign Act or a contract clause, right? Help me understand what you are talking about or thinking in your most recent post.

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3 hours ago, Jamaal Valentine said:

@WifWaf

Typically, authority to change a contract follows basic sources of authority to contract: constitutional, statutory, regulatory, and delegated [actual] authority (including contract terms and conditions). When a contract is formed the authority to make changes is narrowed, but surely the authority to change a contract need not only be based on a Sovereign Act or a contract clause, right? Help me understand what you are talking about or thinking in your most recent post.

To stay on topic in this thread, my answer is simply that the appropriate authority in SF30 Block 13 of the change order that ji proposes would be the applicable Changes clause's explicit contractual authority that, "The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in...Description of services to be performed."

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2 hours ago, WifWaf said:

To stay on topic in this thread, my answer is simply that the appropriate authority in SF30 Block 13 of the change order that ji proposes would be the applicable Changes clause's explicit contractual authority that, "The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in...Description of services to be performed."

Okay, so what ‘changes’ clause do you believe is applicable (i.e., provides authority for the mod in ji’s scenario)?

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Noncommercial services and construction: 52.243-1 Alt. II, -2 Alts. I-IV, -3, and -4 paragraph (b).

Commercial services: 52.212-4(c).  A template definitization clause would need to be standardized by CAAC memo authorizing a deviation, and added to the contract alongside the new facility access requirement in the SOW.  The “agreement of the parties” per this changes clause is thus to use noncommercial terms to make the change and sort the cost out later.

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1 hour ago, WifWaf said:

Noncommercial services and construction: 52.243-1 Alt. II, -2 Alts. I-IV, -3, and -4 paragraph (b).

Commercial services: 52.212-4(c).  A template definitization clause would need to be standardized by CAAC memo authorizing a deviation, and added to the contract alongside the new facility access requirement in the SOW.  The “agreement of the parties” per this changes clause is thus to use noncommercial terms to make the change and sort the cost out later.

Based on your earlier post, I was assuming you were talking about change orders (i.e., unilateral actions), which would nullify 52.212-4(c), which I don’t read as an authority anyway.

As for the 52.243-X clauses, those clauses only permit the contracting officer to “make changes within the general scope of this contract”…I think one could make reasonable arguments for and against inclusion of the new terms and conditions being in scope.

Thanks.

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15 hours ago, Jamaal Valentine said:

I was assuming you were talking about change orders (i.e., unilateral actions),

Change order is not a synonym for unilateral action, it is an example of one.  FAR 43.103

16 hours ago, Jamaal Valentine said:

52.212-4(c), which I don’t read as an authority anyway.

Why not?

16 hours ago, Jamaal Valentine said:

I think one could make reasonable arguments for and against inclusion of the new terms and conditions being in scope.

 

Would an interested party that chose not to offer at solicitation timeframe be treated unfairly by this post-award change?

16 hours ago, Jamaal Valentine said:

Thanks

Oh, you’re leaving.  Merry Christmas!

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1 hour ago, WifWaf said:

Change order is not a synonym for unilateral action, it is an example of one.  FAR 43.103

Change orders are unilateral. Period. Otherwise they are just supplemental agreements (e.g., bilateral).

1 hour ago, WifWaf said:

Why not?

Because the plain language doesn’t confer any authority. In fact, it restricts authority.

1 hour ago, WifWaf said:

Would an interested party that chose not to offer at solicitation timeframe be treated unfairly by this post-award change?

Not in my opinion. However, scope is much broader than that (scope of the competition; and scope of the contract). The changes clause talks about scope of the contract and your question involves scope of the competition.

1 hour ago, WifWaf said:

Oh, you’re leaving.  Merry Christmas!

I wasn’t leaving. I was just thanking you for further explaining your thoughts so that I could follow. My disagreement or agreement was irrelevant; I just wanted to better understand and learn something.

Again, thanks and Merry Christmas.

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36 minutes ago, Jamaal Valentine said:

Not in my opinion. However, scope is much broader than that (scope of the competition; and scope of the contract). The changes clause talks about scope of the contract and your question involves scope of the competition.

Agree. Moving onward to scope of the contract, does a change order introducing the new requirement of vaccination to enter the Government’s facilities:

1. Possibly change the contract type?

2. Substantially change the period of performance?

3. Change costs/prices substantially due to the Government fundamentally altering technical requirements?

Reference B-296358.3; B-296358.4, Biodefense, Inc.; Emergent BioSolutions, January 31, 2006

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@WifWaf

Scope analysis differs in bid protest forums and contract dispute forums and you have referenced a bid protest.

Can we first agree on the common factors used to determine if a modification is out-of-scope [of the contract]?

1. Changes in the Function of the Item or the Type of Work.

2. Changes in Quantity.

3. Number and Cost of Changes.

4. Changes in Time of Performance.

5. Acceptance of a Change.

The new COVID clauses add new requirements that remain indefinite. These indefinite requirements evaluated through the lens of contractors—not wanting the additional responsibility of performing and funding the new work—could be argued as out of scope.

Also, what is the consideration in this modification action? I presume monies, but how much? What is the government’s estimate for the new obligation? (Thinking ADA)

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On 12/24/2021 at 2:11 PM, Jamaal Valentine said:

contract dispute forums

Please share your case law, if you have it handy.  Thanks!  In any event, we appear to be in-scope with the change order.  We are discussing imposing a facility safety measure on all service contractors, that each person be vaccinated to enter government-owned or leased facilities.  That open-ended COVID clause would go away.

On 12/24/2021 at 2:11 PM, Jamaal Valentine said:

what is the consideration

None, for the change order.  How about this: a promise that, by the end of the POP, a supplemental agreement will make the Contractor whole its actual, allowable costs for having to pay to test, vaccinate, and hold accountable its personnel.

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2 hours ago, WifWaf said:

We are discussing imposing a facility safety measure on all service contractors, that each person be vaccinated to enter government-owned or leased facilities.  That open-ended COVID clause would go away.

I’m not sure that we’re clear. Some posters have suggested issuing a modification citing a changes clause and others have stated changes in site availability could be done as a sovereign act.

In your scenario, is the government acting as a contracting party or a sovereign? If its as a contracting party, which is what I presume, contractors can rely on the terms of the contract and can argue that the change is not within the general scope of the contract and the changes clause (e.g., changes (1) Description of services to be performed; (2) Time of performance; (3) Place of performance of the services).

As previously stated, I believe there are arguments for and against such an action being within scope.  However, making the site unavailable can make contract performance untenable. This can raise arguments for a governmental breach of contract.

My point is that there are arguments for and against it being within scope; and how best to incorporate the new requirement. I wanted to pull on the string to see where it went. Who knows what the courts or board of contract appeals would find?

To be clear, I like the approach and argument ji posted. The question is how to go about incorporating it into a contract: as a contracting party via a formal modification in a way that could survive a dispute (e.g., change in the statement of work or clauses); or incorporating compliance operative of a sovereign act.

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I didn’t go back now  to re- read the initial conversation but perhaps readers and posters here aren’t considering the impact to the company and to its employees here. The government would be mandating that most if not all of a contractor’s employees anyway directly or indirectly involved in a government contract or contracts, whether on the government installation or not, be vaccinated and follow the government’s ever evolving policies - or they might not be be able to work for the contractor. This includes permanent employees on or off the installation. That could be very disruptive to a company and to its employees. The impacts for both company and employees could be serious,  extending beyond the instant contract(s). If company employees refuse to be vaccinated and either quit or are terminated…

I don’t think that unilaterally directing such a possibly drastic “change” after award is within the scope of the agreed contract terms. 

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On 12/24/2021 at 6:09 PM, Vern Edwards said:

I suggest that you agree on the terms of the change. Decide what it would require. Then discuss scope analysis.

“Section C is changed to add to the Government-furnished facilities list, a condition for access to the following sites/buildings, that each of Contractor’s personnel must first present to the Contracting Officer or his/her authorized representative the following documents: either the person’s CDC COVID-19 Vaccination Record card or record from the applicable state health department’s immunization information system (IIS), and, when the CO requires heightened force protection, a copy also of the results of an acceptable COVID-19 test conducted within the prior 5 days. [Insert details about what constitutes an acceptable vaccine card and acceptable test results].

“[List affected sites/buildings]”

The guidance to COs should be clear that a bilateral agreement on the change order’s ceiling price per FAR 43.102(b) is the preferred route.  It should also prescribe a limitation-of-funds clause for use when agreement cannot be reached.  Two weeks from memo issuance should be enough to allow all COs time to write the change order and seek the agreement.  In developing the maximum price, a suggested number of labor hours should be given in the guidance, for each CO to apply to each labor category he/she thinks will need to be onsite during performance.

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