This has me scratching my head at FAR 43.204(c)(2):

CONTRACTOR'S STATEMENT OF RELEASE

In consideration of the modification(s) agreed to herein as complete equitable adjustments for the Contractor's ________________ (describe) __________________ “proposal(s) for adjustment,” the Contractor hereby releases the Government from any and all liability under this contract for further equitable adjustments attributable to such facts or circumstances giving rise to the “proposal(s) for adjustment” (except for ____________________ ).

It says the consideration, or thing of value, that the contractor brings to a supplemental agreement containing an equitable adjustment as the result of a change order is a promise that it will not hold liable the government for further equitable adjustments. Isn't the consideration the promise to perform the contract as changed?

16 minutes ago, Voyager said:

This has me scratching my head at FAR 43.204(c)(2):

It says the consideration, or thing of value, that the contractor brings to a supplemental agreement containing an equitable adjustment as the result of a change order is a promise that it will not hold liable the government for further equitable adjustments. Isn't the consideration the promise to perform the contract as changed?

No, they've already promised to do that in their offer (assuming it contained the Changes clause).

Voyager, "consideration" mentioned in the release language you quoted refers to consideration provided by the government to the contractor.

1 hour ago, Retreadfed said:

Voyager, "consideration" mentioned in the release language you quoted refers to consideration provided by the government to the contractor.

Is the modification consideration for the promise to release, or is the promise to release consideration for the modification?

That is the question.

Or is "In consideration of" being used as nothing more than ordinary English phrasing, as in "in view of" or "in light of", with no legalistic intent?

What say ye, Forum?

2 hours ago, Don Mansfield said:

No, they've already promised to do that in their offer (assuming it contained the Changes clause).

Oh. Hence, the change order required no further consideration to be made effective. I get that now, so my proposition is null.

2 hours ago, Retreadfed said:

Voyager, "consideration" mentioned in the release language you quoted refers to consideration provided by the government to the contractor.

But I disagree with this, based on my understanding of the English involved here. I assume that the beginning phrase (from "In" to "adjustment,'") is an adverbial phrase modifying the verb "releases". The noun in the sentence is "Contractor".

1 hour ago, Vern Edwards said:

Is the modification consideration for the promise to release, or is the promise to release consideration for the modification?

That is the question.

Or is "In consideration of" being used as nothing more than ordinary English phrasing, as in "in view of" or "in light of", with no legalistic intent?

What say ye, Forum?

Based on my above assumption, I would say the Contractor's promise to release claims is consideration for the Government's offered contract modification. Especially since "releases" is active, not passive.

If my above assumption is false, then "in consideration of" is mere colloquialism as you suggest.

Edited September 8Sep 8 by Voyager
Went back and revised after Page 2 cleared up my thinking.

1 hour ago, Vern Edwards said:

Is the modification consideration for the promise to release, or is the promise to release consideration for the modification?

That is the question.

Or is "In consideration of" being used as nothing more than ordinary English phrasing, as in "in view of" or "in light of", with no legalistic intent?

What say ye, Forum?

This is my first time commenting in these forums and I do not have decades of experience in government contracting so take my input with a grain of salt, but I interpret that language to be synonymous with "in view of" or "in light of" rather than a reference to a consideration made by the contractor or government. I recently completed a Contractor's Assignment of Release for a DOD contract with the language "Pursuant to the terms of the contract and in consideration of costs as provided for in said contract..." at the beginning of the document. There were no additional "considerations" outside of the proposed work provided by either party.

I think it means “in return for” the modification(s) agreed to herein as complete equitable adjustments for the Contractor's ________________ (describe) ___________ “proposal(s) for adjustment…

See Oxford Languages dictionary definition at a Google Search of “what does in consideration of” mean

Also this under the same search question:

“For a contract release to be legally enforceable, it must meet certain legal criteria:

1. Mutual Consent: All parties involved must voluntarily agree to the release terms.

2. Consideration: There must be something of value exchanged (e.g., monetary compensation, settlement, or service completion).

3. Clarity of Terms: The release language must be clear and specific about which claims are being waived.

19 hours ago, Vern Edwards said:

Or is "In consideration of" being used as nothing more than ordinary English phrasing, as in "in view of" or "in light of", with no legalistic intent?

No legalistic intent. Again borrowing for discussions elsewhere in Forum. A relational intent of the parties where each party gives to the other something to change the contracts original intent. And as a relational intent the parties are committing to not go back on the deal but it not a guarantee of possible legal challenge.

The text at issue is:

In consideration of the modification(s) agreed to herein as complete equitable adjustments for the Contractor's ________________ (describe) __________________ “proposal(s) for adjustment,” the Contractor hereby releases the Government from any and all liability under this contract for further equitable adjustments attributable to such facts or circumstances giving rise to the “proposal(s) for adjustment” (except for ____________________ ).

That's one sentence. Let's rewrite it.

The subject of the sentence is the Contractor. Let's put the subject first, where it belongs:

The Contractor...

The predicate of the sentence is hereby releases the Government from any and all liability under this contract for further equitable adjustments attributable to such facts or circumstances giving rise to the “proposal(s) for adjustment...

Let's put the predicate after the subject, where it belongs:

The Contractor hereby releases the Government from any and all liability under this contract for further equitable adjustments attributable to such facts or circumstances giving rise to the “proposal(s) for adjustment (except for___________)...

Now, where should we put In consideration of the modification(s) agreed to herein as complete equitable adjustments for the Contractor's ________________ (describe) __________________ “proposal(s) for adjustment..."?

How do we complete the rewrite?

What say you?

At the beginning. 🤪

Edit: But if you insist, how about something like “This modification agreed to herein serves as consideration for complete equitable adjustments for the Contractor's ________________ (describe) __________________ “proposal(s) for adjustment..."?

IMO, the current wording is adequate.

Edited September 6Sep 6 by joel hoffman

Since the release is only applicable to bilateral modifications, the above or similar wording must be included as the legal basis for the release…

@joel hoffman So you think the mod is consideration for the release, not the other way round?

Yes . I think that is the way it reads right now .

“In consideration of… the contractor hereby releases the government of…”

Of course, I’m not a lawyer. I’m sure that lawyers wrote or approved the existing language.

EDIT: This or similar language was supposedly included in the initial issuance of the FAR in 1983-1984 (per a Google Search). The same language is in a 1998 FAR that I still have. I dont have access to the FACs cited for SUBPART 43.2 in that FAR edition.

Edited September 6Sep 6 by joel hoffman

1 hour ago, Vern Edwards said:

@joel hoffman So you think the mod is consideration for the release, not the other way round?

Vern, you are a close friend of one of the all-time most respected Contract Law attorney Professors. Is this a test? I’m pretty sure that R.C.N., Jr., Esq. knows. 🤠

@joel hoffman

Based on the text of the Changes clause, isn't agreeing to an equitable adjustment a pre-exiting legal duty of the government? Didn't it promise to do that and to modify the contract when it signed the contract?

(b) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract.

1 minute ago, Vern Edwards said:

@joel hoffman

Based on the text of the Changes clause, isn't the granting of an equitable adjustment a pre-exiting legal duty of the government?

Yes. But the release is only applicable to supplemental agreements, not a unilateral equitable adjustment.

Just now, joel hoffman said:

But the release is only applicable to supplemental agreements, not a unilateral equitable adjustment.

On what basis do you say that?

4 hours ago, Vern Edwards said:

In consideration of the modification(s) agreed to herein as complete equitable adjustments for the Contractor's __

A unilateral modification for an equitable adjustment is open for further contractor dispute. It isn’t necessarily final and complete.

I should have said supplemental agreements for the equitable adjustments, not interim agreements. It also allows for exceptions to the releases .

When a CO sends the contractor a mod to be signed as a supplemental agreement, isn't that an offer to settle?

I’ve never seen that done. Sending a bilateral mod as an offer, doesn’t seem to me to reflect a clear mutual understanding of the settlement. Nonetheless, unless the release is included, it isn’t necessarily final and complete. And it might not include exceptions which are allowed…

Much case law on the finality of releases and exceptions. I’m not a lawyer. Just a retired practitioner.

I’ve got to mow the yard and watch football. Ask Ralph. 🤠

Just now, joel hoffman said:

Ask Ralph. 🤠

I did. He said he wasn't sure. We both laughed. 😁 I don't know, either.

1 hour ago, Vern Edwards said:

I did. He said he wasn't sure. We both laughed. 😁 I don't know, either.

🌹👍 🤠

Personally, I think the whole statement is wordy and unnecessary. Why not just rewrite it to say, "The Contractor hereby releases the Government, in consideration of the modification(s) agreed to, from all liability under this contract for further equitable adjustments arising from the “proposal(s) for adjustment” (except for _________)."

1 hour ago, Vaughn said:

[T] he whole statement is wordy and unnecessary. Why not just rewrite it...?

Why not?