joel hoffman

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…

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 .

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

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. 🤠

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.

Is there a “comparator”, somewhere, that has the existing and new FAR language side by side , similar to the FAR Part 15 rewrite in 1996-1997. Edit: I see that there is a “practitioner album”with some “summary of changes” and “line out” of the sections. However, in reading some of the line outs they leave incomplete sentences in many instances and completely delete scope of the part and paragraph titles.

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

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.

As a general comment, I believe using the FAR Uniform Contract Format is about as far away from commercial construction contracting formats as it gets. MasterFormat is a commercial construction contracting format. For those wanting to use commercial construction contracting formats, if they can’t figure out how to use MasterFormat, they shouldn’t be doing construction contracting for anything more than the small, simple stuff. It’s already obvious to me that whoever is in charge of the re-write doesn't know much, if anything about the actual workings of construction contracting. The voluntary VEQ language is a glaring example It’s the Wild West approach, lacking any consistency and ignoring long held case law. read somewhere recently where the rewrite process can include non-statutory language that is necessary to promote efficiency, consistency or avoid problems… Edit: the FAR Part 43 is an example of including non-statutory but essential language. For instance, the Changes Clause and bilateral application are not statutory.

Disagree about an up to $7.5 million project. Have already agreed here more than once about truly small, simple projects (e.g. a “shed” , painting A building, runway rubber removal, replace windows in A building) or purchase orders to add, fix or replace some real property installed equipment.

@KeithB18 thank you for your insight and reflection. I agree with you. Back in 1971-1972, as a fresh Air Force 2LT civil engineer, I was assigned to replace a Captain as the project engineer on a unique, Air Force awarded, Design-Build Military Family Housing Project at Castle AFB in Atwater/Merced CA. I worked very closely with a Tech Sgt. who was assigned as the contract specialist in the Base Contracting Office. We became good friends. It was a good project.

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: Mutual Consent: All parties involved must voluntarily agree to the release terms. Consideration: There must be something of value exchanged (e.g., monetary compensation, settlement, or service completion). Clarity of Terms: The release language must be clear and specific about which claims are being waived.

There will be little or no consistency in how to manage variations in estimated quantities if there isn’t a standardized approach. It is necessary coverage for unit priced contracts or line items with estimated quantities that might vary due to difficulty or impossibility to strictly fix quantities, e.g., rock excavation, undercut and backfill, encountering unsuitable subgrade materials, etc. The interpretation and application of the FAR VEQ clause has been litigated and defined by case law for several decades. It would be stupid IMO to leave it up to individual KO’s or organizations to write clauses or price VEQ’s. It must be standardized and consistent. There is no need to reinvent the wheel. Who are the people editing these sections of the FAR??? P.S. the VEQ clause isn’t applicable to pricing changes in the amount of work that is to be unit priced.. It’s meant for variations between estimated and actual quantities of work that is performed under the scope of the required work. If I want to add additional work, it’s a change

WOW!!!! @WifWaf I absolutely agree with you!!!!!! What idiots decided to remove this time and case law tested VEQ coverage??????

The Association of General Contractors represents a huge share of the construction market. And in my opinion, the DoD construction contractor format, using the Construction Specifications Institute’s MasterFormat is already a standard format in use in the marketplace. The construction industry requires more time than a couple of weeks to just develop a bidding team, seek qualified, competitive subcontractors and suppliers, determine the scope of work, estimate quantities of materials and work, develop a construction approach, obtain bids, etc. Generally a site visit is necessary to see and also identify the conditions , locations, ask questions etc. The industry already complains about having only 30 days to prepare and submit price proposals for non-design-build, construction projects . For Design-build competitions, one must add some time for the firms and their teaming partners to develop enough preliminary design to estimate and price a proposal. We recommend 45 days in lieu of 30 days for D-B competitions. In my experience, there is often room for improvements in initial pricing in a RFP due to many factors. I have often been able to shave millions of dollars off initial proposed pricing that were due to uncertainties in conditions, ambiguous specs that drove up prices from subs, suppliers that see designs around certain specific equipment, etc. On one large Air Force Project, we found alternate sources for high volume compression Turbines that dropped the price of that major equipment by $3 million from the initial proposed price. In another instance, lack of identification of elevation to rock and to water tables on a very long, elevated, high volume, high velocity heated/chilled air line resulted in over $2 million in contingencies by foundation subcontractors for uncertainties and possibility of encountering rock excavation and de-watering.. We added unit-priced line items for rock excavation and de-watering. The proposers dropped prices by $2 million In the end, we had a $1 million dollar underrun in those unit priced line items, resulting in over saving $3 million dollars below the initial proposed prices. Those are but examples of dollar savings and/or improvements/corrections in the solicitations thst end up saving dollars and after award conflicts/delays/corrective action, etc. Cutting corners to “expedite the process for the acquisition of construction services up to $7.5 million” doesn't serve the best interests of either the industry or the taxpayers. (Note my examples cited reflect mid 1990’s pricing and lessons-learned. Current dollar levels for the same problems would be much higher.)

There aren’t standard catalog prices for most construction projects. Don’t consider the “Means Estimating Guide” as “catalog pricing”. It can provide unit priced estimates but each item must be estimated by applicable quantity and the underlying basis for an estimate depends upon applicable labor rates, available equipment and several other variable conditions.

For a complete construction project, I’m not sure what you are trying to accomplish with a Part 12 commercial service contract format. I can see how a Part 12 Contract could be useful for simple efforts like that I mentioned earlier - installing, replacing or repairing individual items of real property installed equipment, small painting projects, etc. But for a construction project , the DoD doesnt use the Uniform Contract Format for construction contracts. It uses the Construction Specifications Institute’s CSI MasterFormat, which is a standard construction industry contract format. The Unified Facility Guide Specifications UFGS are written in the CSI Format. They incorporate standard industry commercial materials, equipment and installation procedures plus mandatory federal design criteria. The contract clauses also allocate risk and assign standard roles and responsibilities between the contract parties. The contract format and roles and responsibilities are not unlike commercial construction contracting for similar type projects. The standard basic construction contract clauses aren’t that many and generally resemble many non-federal construction contracts. I would agree that there are a large number of social engineering and bureaucratic clauses that Congress has interjected. What corners are you trying to cut ?

I agree with @GeoJeff assessment, too. Of course, the Part 12 payment procedures (no progress payments, no payment for stored materials, etc. prior to completion and acceptance don’t work for construction contractors. The requirements for bilateral agreement to make changes would likely cause massive disruption and schedule impacts as well as chaos in pricing changes and time extensions and in determining entitlement to compensation for delays and impacts.

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. Even when Sears Roebuck sold houses out of its catalogs over 100 years ago, I believe that it was only for the plans and materials, not including the construction of the kits. I agree with Vern’s assessment. Construction contractor’s generally don’t write the contract language or design and prepare the plans and specifications for complete construction projects in commercial practice. Note that the AIA and other standard model specs like NSPE, ASCE, are prepared for specific contracts by licensed architects and engineers, who are the designers of record. The DOR’s , have both statutory and regulatory responsibilities for not only the functionality and performance but also for durability and life safety aspects of projects. . I can see using Part 12 for: Also for repairs or replacement of individual building components like an A/C unit or other components in a building for instance. But one would be a complete fool to use Part 12 for a full construction project.

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.

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.

I worked for DoD (US Army Corps of Engineers) for many years. I have experience with what I consider frivolous protests. During a period in the 1990’s before the Brooks IT Act was thankfully repealed, the GSBCA had jurisdiction over all protests for contracts that contained Federal Information Processors (FIP). GSBCA held that construction contracts which included even one desktop computer that controlled fire alarms, sprinkler systems, HVAC and other building systems were considered to be FIP. The systems had digital controls or sensors reporting to the IBM or similar desktop. The Army was upgrading controls for such building systems in existing facilities or including the Electronic Monitoring and Controls Systems (EMCS) or Utility Monitoring and Control Systems (UMCS) in new construction. There were three firms with separate proprietary control systems competing for every new or upgraded EMCS installation. We awarded a best value contract for upgrade EMCS to a hospital that had a partial Johnson Controls System. Within 3 hours, of the award announcement, one unsuccessful proposer submitted a canned, fully detailed bid protest. There was no way that any of the three competing firms had any details of the basis of award or other information concerning the evaluations or trade-off that would have been included in a subsequent de-briefing. There was no basis immediately upon award to make specific claims of improper proposal evaluations or favortism I learned soon after the protest notification that every similar type procurement in other USACE Districts for several years had also been protested. This project award was delayed for almost a year, due to the initial and subsequent protests by the firm to GSBCA and then to an Appeals Court. We finally prevailed in Court, when our USACE Headquarters successfully convinced the court that standard digital building systems controls were not “FIP” resources but incidental to and part of the standard building systems, thus not subject to GSBCA protest jurisdiction. The Court also overruled the unreasonable GSBCA holding in our case that every intangible strength in a best value trade-off had to be monetarily quantified in order to justify awarding to a firm with a higher rated/higher priced proposal. Congress soon repealed the Brooks IT Act and GSBCA jurisdiction over DOD procurement protests. Totally frustrating and frivolous protest and dealings with GSBCA, who were way out of their lane.

EDIT: I noticed that the original poster last “visited” the site at the time he/she posted their question, over five days ago. Hopefully, they are satisfied with the answers provided. Good luck.

@HWD Hello. Although various scenarios have been discussed by respondents, could you please provide some context to the stated problem? Your original post simply asked for options but really didn't provide any context/details. My original post assumed that the problem became evident after exercising the option. I’m assuming that this a contract/task order for dental services, including but not limited to dental cleaning services. Is that correct? The need for additional context seems evident. For instance, is this now prior to exercising the option or is it afterward, during performance? When was the government first aware of the problem? Is providing a dental hygienist a separately identified line or sublime item? E.g., If so could it be too underpriced to attract or retain a current hygienist(s)? Has the contractor explained why it is having this problem? Etc. Without any context/details, one can only speculate. .You asked for available “options” . But, as stated by others here, available options depend upon the specifics of the scenario. Dental hygienist and cleaning .services are obviously an integral part of dental care. Thank you.

The type/sense of pride that I’m referring to is “authentic pride”, which can be described as as: “Rooted in Achievement: Authentic pride is a direct result of achieving goals, mastering skills, or successfully completing tasks through one's own efforts. Positive Impact: It promotes feelings of self-worth, confidence, and motivation, encouraging further effort and achievement. Characteristics: Individuals experiencing authentic pride are often described as friendly, responsible, and forward-looking. Connection to Self-Esteem: Authentic pride is associated with high self-esteem and a healthy sense of one's abilities. Example: Feeling proud of successfully learning a new language or completing a challenging project.” As opposed to “hubristic pride”, which can be described as: “Rooted in Arrogance: Hubristic pride is characterized by arrogance, a sense of superiority, and a tendency to belittle others. Negative Impact: It can lead to hostility, defensiveness, and a lack of motivation for self-improvement. Characteristics: Individuals experiencing hubristic pride may be described as pompous, conceited, and arrogant. Connection to Narcissism: Hubristic pride is often linked to narcissism and a need for external validation.” Also -“Extreme love and focus on oneself” And “An inflated sense of self importance and a tendency to look down upon others” Example: “Feeling superior to others based on perceived achievements without putting in the necessary effort.” See, for instance: a Google search for “Authentic pride meaning” and compare against “sinful Biblical Pride”, “Hubristic Pride”.