I wanted to revisit the definition of "appropriate consideration" under FAR 1.108(d)(3) and commercial items contracts that have 52.212-4 in it. The Changes Clause "(c)" there requires that no changes to the terms or conditions of the contract can occur ONLY with a mutual agreement of the parties. So here are my questions:

1. Are these independent authorities to modify the contract?

2. If so, does FAR 1.108(d) provide a unilateral right by the Contracting Officer to modify the contract?

3. If no, can the Contractor refuse to negotiate "appropriate consideration" and prevent a mutual agreement under 52.212-4(c)?

4. Since "appropriate consideration" is effectively a right to an REA, can the Contracting Officer determine that the appropriate consideration is $0.00 if the Contractor cannot actually establish any additional costs to imposing the new clauses under FAR 1.108(d)?

5. What other remedies might the Government have short of a negotiated resolution under the commercial changes clause, other than the Disputes Clause?

@Gareth Hyndman

In a quick and simple response to all your questions I think paragraph (d) of 52.212 -4 answers them all. What do your think?

I don't understand the question. How is either one an "authority" to modify a contract?

1. I don't understand that question.

2. No.

3. Yes.

4. No. Don't confuse "equitable adjustment" with "appropriate consideration". They are not the same. Do you understand the legal concept of consideration?

5. "Remedies" for what?

On 8/26/2025 at 9:58 AM, Gareth Hyndman said:

I wanted to revisit the definition of "appropriate consideration" under FAR 1.108(d)(3) and commercial items contracts that have 52.212-4 in it. The Changes Clause "(c)" there requires that no changes to the terms or conditions of the contract can occur ONLY with a mutual agreement of the parties. So here are my questions:

1. Are these independent authorities to modify the contract?

2. If so, does FAR 1.108(d) provide a unilateral right by the Contracting Officer to modify the contract?

3. If no, can the Contractor refuse to negotiate "appropriate consideration" and prevent a mutual agreement under 52.212-4(c)?

4. Since "appropriate consideration" is effectively a right to an REA, can the Contracting Officer determine that the appropriate consideration is $0.00 if the Contractor cannot actually establish any additional costs to imposing the new clauses under FAR 1.108(d)?

5. What other remedies might the Government have short of a negotiated resolution under the commercial changes clause, other than the Disputes Clause?

Okay-so what are you actually referring to and trying to do? It appears that you are trying to add new or revised clause(s) to an awarded contract for “commercial items”

“(d) Application of FAR changes to solicitations and contracts. Unless otherwise specified-

(1) FAR changes apply to solicitations issued on or after the effective date of the change;

(2) Contracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and

(3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.”

I don’t think the KO can unilaterally force such FAR changes (may depend upon what the FAR change is) on the contract.

It appears that the original poster@Gareth Hyndman

last checked-in to the WIFCON website on 26th of August, although one can view the thread without a log -in to the Site. It is now the afternoon of the 3rd of September.

Edited September 3, 2025Sep 3 by joel hoffman