joel hoffman

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.

7 minutes ago, Motorcity said:

I've only had large firms refuse to sign a release. Never once have I had a small biz push back. Maybe because they don't have the bandwidth at that level?

I don’t remember every firm that signed only with reservations but you are probably right.

Edit: The last one I was directly involved with was a large business civil works contractor, Granite Construction, 12 or 13 years ago.

We occasionally had contractor’s whose legal departments’ policy was not to sign a release. The usual excuse was that the impact of cumulative effect of changes couldn’t be pre-determined. Then we’d get the REA at the end of performance. Raytheon was a prime example. They “tried” but had zilch of a case to support it. . That’s another story…

On 9/6/2025 at 12:02 PM, Vern Edwards said:

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

Vern, if you mean, after completion of negotiations and agreement, sending the mod unsigned mod to the contractor to sign and return, I suppose that may be considered an offer to settle, although the parties have already settled the issue through negotiation or a proposal and acceptance of the proposal by either party. .

On 9/6/2025 at 12:02 PM, Vern Edwards said:

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

1 hour ago, Retreadfed said:

What is this?

It’s when the government issues a unilateral modification for an equitable adjustment to the contract price and/or contract time due to a directed change order or constructive change or under another applicable contract clause that may provide for an equitable adjustment, such as Differing Site Conditions, etc.

There can also be unilateral mods for price adjustments but no profit/fee or non-compensable time extensions, etc, etc….

I agree with Voyager. The clause has worked since 1984.

On 9/6/2025 at 7:41 AM, Vern Edwards said:

Quote: 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 ____________________ ).

5 hours ago, Vaughn said:

"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 _________)."

Just a comparison for info.

51 minutes ago, Don Mansfield said:

Joel,

I've been creating line-in line-out versions of the changes and posting them on my web site: www.donacquisition.com.

Thanks, Don!

1 hour ago, Vern Edwards said:

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

🌹👍 🤠

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. 🤠

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…

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 .

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.

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. 🤠

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.

1 hour ago, C Culham said:

Remember my posts have attempted to put it all in perspective. Its seems all want to morph to the 800 pound gorilla construction service acquisitions. I agree there is huge difference between building a shed and a bomb disposal facility. My intent is to pose that it makes entire sense from my view that using say FAR Part 12 and their companion procedures (subpart 13.5) can make a lot of sense for a shed or better yet someting estimated up to $7.5 million.

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:

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.

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

5 minutes ago, WifWaf said:

Joel, foot stomp this. This is where critical thinking matters the most - in proposal analysis. Unfortunately, the RFO changes to Part 52 and Part 11 have removed Subpart 11.7's variation in quantity guidance and removed FAR 52.211-18 Variation in Estimated Quantity. The clause must be reinserted via public comment on the Federal Register during this administration. Gosh, yours and my experience alone with this clause is reason enough to reinsert it. Wth!

"Move quickly, fail fast", they say. I get it, but it sure is a wild ride.

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