5 hours ago, Witty_Username said:

Ah, I was understanding the RFO to have removed the clause from the FAR entirely, throwing it into the realm of agency or local clauses. If it remains optional that would be much easier to deal with.

You are understanding correctly. The clause is completely removed from the FAR in the deviation guidance.

1 hour ago, Don Mansfield said:

You are understanding correctly. The clause is completely removed from the FAR in the deviation guidance.

@Witty_Username @Don Mansfield My error. When I contacted a friend working on the overhaul with this clause question, her reply was “the contracting officer has the option to include this.” I mistakingly thought the clause was optional.

Ineptitude (ok, a “mistake”?) to say that the KO can use a clause that doesn’t exist.

Is every KO or Organization supposed to reinvent the wheel and invent their own clause to cover ranges of overruns and underruns of unit priced line items and include their own clause and implementation guidance in a FAR supplement?

One of the purposes of the FAR has been to have uniform and consistent contracting policies.

I will repeat - some new FAR coverage has included non-statutory language where deemed necessary for good practices. Case law has defined the interpretation of the present FAR clause.

@joel hoffman This is one of my main criticisms of the FAR Overhaul. Presumably, a clause is in the FAR because it meets the conditions for publication in 41 USC 1707. If you remove it, and agencies come up with their own versions, they would probably have to be published in the agency's FAR supplement. So what would be achieved? Chapter 1 of Title 48 gets shorter, but all of Title 48 gets longer. FAR 1.304(c) states "coverage that is not particular to one agency shall be recommended for inclusion in the FAR." This mitigates the risk of each agency coming up with their own unique clauses that achieve the same purpose.

9 hours ago, Don Mansfield said:

@joel hoffman This is one of my main criticisms of the FAR Overhaul. Presumably, a clause is in the FAR because it meets the conditions for publication in 41 USC 1707. If you remove it, and agencies come up with their own versions, they would probably have to be published in the agency's FAR supplement. So what would be achieved? Chapter 1 of Title 48 gets shorter, but all of Title 48 gets longer. FAR 1.304(c) states "coverage that is not particular to one agency shall be recommended for inclusion in the FAR." This mitigates the risk of each agency coming up with their own unique clauses that achieve the same purpose.

Don, thanks. I agree. Is it too late to correct this blunder?

On 9/11/2025 at 3:18 PM, joel hoffman said:

One of the purposes of the FAR has been to have uniform and consistent contracting policies.

Agreed but I would suggest that the departure from uniform and possilbly consistent started the day the FAR was originally published and the departure grew through to today. I think a cruise of solicitation packages found on SAM.gov would support my view.

I also agree that the Federal government contracting case law is significant and would support use of something like a variation in estimated quantity use as being consistent. But back to the original thoughts of this thread as construction being commercial is there not significant case law with regard to AIA and UCC supported contracting terms and conditions?

All begging the question as to whether Federal contracting should be unique? I say yes circling back to my statement that the intent of the FAR and its promotion of uniform and consistent acquisition policies is to fulfill the publics interest and a nationalistic view of mission accomplishment. And the statutes while lynch pin to this ideal, the FAR and its content beyond the statutes is needed to further promote the ideal. The rewrite is necessary but I would agree whole heartedly that it is headed in the wrong direction.

13 hours ago, joel hoffman said:

Don, thanks. I agree. Is it too late to correct this blunder?

Probably. I don't think the current FAR Council even sees a problem.

5 hours ago, Don Mansfield said:

Probably. I don't think the current FAR Council even sees a problem.

Sheesh, such ignorance by whomever made the change. Unfortunately, I was ignorant of the proposed change. Shame on me.

Well, I hope that the Army Corps of Engineers has enough sense to restore the clause and implementation instructions in at least their procedures but preferably at least at Army level.

On 9/13/2025 at 5:07 PM, joel hoffman said:

Sheesh, such ignorance by whomever made the change. Unfortunately, I was ignorant of the proposed change. Shame on me.

Well, I hope that the Army Corps of Engineers has enough sense to restore the clause and implementation instructions in at least their procedures but preferably at least at Army level.

The process is not complete. Federal Register Proposed Rules have not even been posted. Those formalities will come later, but there are multiple opportunities to provide informal user feedback even before that. Don't think of this process as waterfall systems development when the policy writers are trying to use agile. I think the difference is that they will move fast now and risk a few time-limited mistakes, but then they'll correct for those before the big failures happen in the field, by listening to real-time user feedback.

Voice your concerns to the FAR Companion writers here through October 31, 2025: FAR Companion Version 1.0

And here via email to OFPP anytime: MBX.OMB.OFPPv2@OMB.eop.gov

Sometimes the individual FAR Parts have a "We welcome informal input on the revised FAR Part [x]" button on them inside the links on this page: FAR Overhaul - FAR Part Deviation Guidance | Acquisition.GOV, but it looks like FAR Parts 11 and 36 don't have one, so you just have to email OFPP and the Companion writers.

Thanks, WifWaf.

If any reader here is a current USACE employee, would you please send me a personal message?

I think that it would be important for HQUSACE to bring the issue and importance of including uniform application of the Part 52 VEQ clause and the implementation language in Part 11 to the attention of the OFPP and FAR rewrite team.

Before retirement, I was one of the USACE proponents for consistent interpretation and application of the VEQ clause, which stemmed from The “Victory Construction” Court case and later affirmation by Federal Circuit case, Foley Co. v. United States, 26 Cl. Ct. 296 (1992), aff’d, 11 F.3d 1032 (Fed. Cir. 1993) and subsequent Case Law (e.g., Thermocor, Inc. v. United States, 1996 U.S. Claims LEXIS 68 (Cl. Ct. 1996).

I don’t have contact with the current contract admin leadership at HQUSACE

We provided and taught guidance for standard contract admin procedures applicable for both underruns and overruns outside the 85-115% range of estimated quantities.

Of course, there are some exceptions to the application of the methodology in the VEQ clause. The concept is that both parties have agreed to a unit price that is part of. The bargain. But if the government, through gross error or negligence, inserts an estimated quantity that bears no resemblance to the actual scope of work, the boards have sometimes held that the contractor was not held to the Unit price for vast overrun; sometimes the Differing Site Conditions clause was applicable, etc.

On 9/3/2025 at 1:51 PM, joel hoffman said:

This bolded language, by itself would disqualify most construction projects of any complexity, as a full blown construction projects aren’t priced based upon established catalog prices or market prices.

Per the RFO, 2.101 "Market prices means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors."

Therefore, even complex construction would, in competitive cases, have prices based on market prices as defined per the RFO. I'm not commenting on whether it's a good or bad idea to do them under Part 12, just highlighting what the RFO says regarding "market prices."

On 9/3/2025 at 1:51 PM, joel hoffman said:

(Please ignore this formatting error - I can't delete this part.)

I think the economic concept of "price" is inapplicable to many government jobs undertaken when the future is uncertain and both parties expect that there are likely to be discoveries or events that will require renegotiation of the original contract dollar amounts.

The notion that there can be a "price" or "market price" or "fair and reasonable price" for construction, even just kitchen or bathroom remodeling, or for any long-term or complex services strikes me as nonsense. There can be an initially higher or lower bid or proposal dollar amount, an estimate or a budget, but not a "price" in any economically meaningful sense of the word.

Yes apparently most anything these days is then “commercial” under that definition. I agree with Vern. .

My point is what do you expect to gain by using a Part 12 contract format for anything other than simple little jobs and individual equipment installations or replacements?

The CSI (Construction Specifications Institute) Format thst the Corps of Engineers uses is a commercial standard contract format in lieu of the UCF . The standard FAR construction contract clauses are similar to those typically found in commercial and state and local government construction contracts. Why reinvent the wheel? I was a consulting engineer for local government and private commercial customers over forty years ago. Our contract formats were standardized too and similar to the CSI format.

If you think like a prime contractor with a large, noncommercial, noncompetitive proposal and a portion of it being subcontracted design-build construction, you could see the benefit now of not having to provide certified cost or pricing data by claiming the commercial service exception. Likewise why should the government have to analyze cost data on a D-B where the Designer-of-Record (DoR) is the prime contractor? Negotiate it FFP and transfer all that risk. Perhaps write a clause about DoR, which is sorely missing from FAR.

You have to admit the commercial item definition was a skewed construct designed to give out as many TINA exceptions as possible.

The Statutory coverage of design-build authorization implemented in the current FAR Part 36 requires competition , not sole source or design, then contract to build.

I agree about lack of FAR coverage for Design-build procedures and the unique roles and responsibilities of the design-builder and the government in DB. In fact the FAR Part 36 council stated during the comment period for adding the Two-Phase DB procedures to Part 36 that this was beyond the scope of the FAR implementation of the legislation. Plus, the contracting and legal members had no independent knowledge of the distinctions between roles and responsibilities of the parties for DB and DBB. They actually stated that they didn’t think any coverage of the revised R and R was necessary. I know because one of our HQUSACE Counsel was the lead on the DAR committee for Part 36 at the time.

She helped me write the coverage that we developed for Corps of Engineers DB contracts. We also adapted some earlier coverage that DB pioneers in the USACE developed in the late 1980’s.

So we developed the coverage for our Corps of Engineers DB contracts almost 30 years ago. We have taught this material Corps-wide in our Design-build course since 1997.

But under the current regulatory climate, if it’s not statutory it won’t be in FAR.

Guess what - our contract coverage of the unique roles and responsibilities of the parties mirror that of the Design-Build Institute of America for competitive DB. There are many differences between Design-Bid-Build and DB.

Anyway, an acquisition for a sole source or competitive DB project generally wouldn’t be conducted at a point where there would be much if any cost or pricing data that could be certified available, unless the sole source had to design most of the project before submitting a price proposal for construction.

I was one of the first two Government Employees to achieve DBIA (Design- Build Institute of America) Designation as a “Design-Build Professional” about 25 years ago. I was a member for about 25 years. .

16 hours ago, Vern Edwards said:

I think the economic concept of "price" is inapplicable to many government jobs undertaken when the future is uncertain and both parties expect that there are likely to be discoveries or events that will require renegotiation of the original contract dollar amounts.

The notion that there can be a "price" or "market price" or "fair and reasonable price" for construction, even just kitchen or bathroom remodeling, or for any long-term or complex services strikes me as nonsense. There can be an initially higher or lower bid or proposal dollar amount, an estimate or a budget, but not a "price" in any economically meaningful sense of the word.

Tell that to our finance and comptroller folks, along with the IG auditors. They seem think there is a magic set of books with prices already built in, as if it's a one-stop shop for all your "pricing" needs.

1 hour ago, Motorcity said:

Tell that to our finance and comptroller folks, along with the IG auditors. They seem think there is a magic set of books with prices already built in, as if it's a one-stop shop for all your "pricing" needs.

Most of the people involved in government contracting are trapped in 19th Century ways of thinking about contracting. We need is a revolution in thought before we can have a real revolution in regulation.

On 9/23/2025 at 1:43 PM, Vern Edwards said:

Most of the people involved in government contracting are trapped in 19th Century ways of thinking about contracting. We need is a revolution in thought before we can have a real revolution in regulation.

Good luck with that. I understand that the avg US adult in 2025 has an attention span of something like 47 seconds on a single unit/screen.

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