Jamaal Valentine

The matrix identifies which clauses are already included in FAR 52.212-5. Check the legend.

First, what do you mean by this? Why do you say the additional work is in scope under the original SOW?

@ebkac, you aren’t acquiring major systems under FAR part 34 so the limitations at DFARS 234.005-1 wouldn’t generally apply. FAR 1.105-2 states that “[t]he FAR is divided into … parts (each of which covers a separate aspect of acquisition) ...” However, some may argue that DFARS 217.202(2) doesn’t limit applicability to only major systems. I think this is what you are concerned with. Am I correct? It seems you are interested in modeling something after what you read in DFARS 234.005-1. I don’t think you’d need to cite DFARS 234.005-1 as an authority. Although you might use it as an example to help sell your idea. See also FAR 1.102(d).

@Portland1102 In addition to what Vern mentioned, you may need to look at DFARS 212.301(f). This is a reminder to always check any applicable FAR supplements. For example, DFARS states the following: “Use the FAR clause at 52.203-3, Gratuities, as prescribed in FAR 3.202, to comply with 10 U.S.C. 2207.“ Id. The matrix is not a perfect tool and can lead to issues for those that don’t understand how it works and its limitations. It’s common to need the DoD’s COR clause (252.201-7000), but it might get missed if relying on the matrix. You can reach out to the person who maintains DAU’s matrix. He will provide training, discussion, and insights. The tool is useful. It’s usefulness increases the more you understand it intended use and limitations.

@formerfed Absolutely. I only posted the amendments. You can’t amend something that’s not already in existence.

Telecommuting has been in the FAR long before Jan 2022. See 69 FR 58702, Oct. 5, 2004, as amended at 79 FR 24198, Apr. 29, 2014.

@KeithB18 I recently finished a special project to help rewrite more than a dozen position descriptions. Our Human Resources classifiers mentioned that a position will not be classified as a supervisor unless supervisory duty is performed at least 25 percent of the time. The rule of thumb they used for count was no more than four direct reports.

I wonder if they watched or listened to this discussion of “DoD’s gaffe in interpreting the [Contract Management Standard] when developing the new DoD Contracting Competency Model.”

I’ve withheld comment until I could read it in its entirety. Creating a standard that tracks to at least three different rule sets is a challenge. Some commercial contracts are governed by the Uniform Commercial Code. Most government contracts are governed Federal Acquisition Regulations. Common law applies to both. First, does the government care about a voluntary consensus American National Standard (ANS) for government buyers and sellers? If yes, why? If not, why include government buyers or sellers? Why not create a separate standard? Maybe creating a set of principles is more appropriate. Nonetheless, assuming there is government interest, the first challenge in setting a standard is creating a lexicon. Currently, government buyers and sellers have their own lexicon(s). Even with a common lexicon, these buyers and sellers still use jargon and colloquialisms. Be sure to add code switching to the standard.

@Vern Edwards Thank you. It’s early and I’ve already learned something new. I did not know about ‘legal’ editions. I wonder what source of FAR is cited in cases. Looks like I have something fun to research while waiting for my car to get finished.

Is acquisition.gov the home of the official DFARS? That site was last updated on 2/09/2022; whereas, Title 48 at eCFR.gov was last amended 3/02/2022. If acquisition.gov is an unofficial DFARS, what would prevent them from adding the class deviations?

Well done, good and faithful servant. There can be no higher praise in my opinion.

As the saying goes, necessity is the mother of invention. If that’s true, and I believe it is, practitioners must lead the charge.

How much, if any, do you think Mr. Rule’s legal training played in his knowledge, skills, and abilities?

Buying-in is a disjunctive rule that also includes expecting to “[r]eceive follow-on contracts at artificially high prices to recover losses incurred on the buy-in contract.” It’s not limited to change orders. Again, I’m just saying it ‘sounds like’ buying-in. I’m not making an assertion that it actually is buying-in.

Sounds like buying-in when put this way, but what is ‘artificially high’? 🤔

Agreed. The technique does require clear thinking and plenty of practice. However, done well, the format should produce a clear and concise single-sentence question. This question should be answerable ‘yes or no’, which requires thought about what significant factors should be included. I just thought I would share something I’m personally studying and working on. Practitioners can try it or not. One benefit of WIFCON is that it allows editing and discussion. Question writers can leverage both and revise and improve their issue statements based on feedback. As a supervisor, I would appreciate a clear and concise question in the format of an issue statement. One that covers all necessary details and does not include unnecessary details. Plus, issue statements fit into the legal analysis or discussion (e.g., FIRAC) that is likely to follow. “Here is my situation” is the facts section of FIRAC.

@Vern Edwards, I have been studying about asking questions. Legal issue statements and the “Under-Does-When” format could useful when asking a ‘quick question’?

No. The other party may agree with the claim without material disagreement. It seems contractual issues in controversy are disputes. Accordingly, a disagreement would need to be a material disagreement that may result in a claim or is a part of an existing claim. “Issue in controversy means a material disagreement between the Government and the contractor that- (1) May result in a claim; or (2) Is all or part of an existing claim.“

How did you determine those are the best rates?

I’m not sure if the contracting officer could or should include such a requirement? What’s the reason for inclusion? Is the requirement even enforceable/appropriate since it appears to be under a competitive RFP issued to commercial sources in the open market?

I’m not sure that we’re clear. Some posters have suggested issuing a modification citing a changes clause and others have stated changes in site availability could be done as a sovereign act. In your scenario, is the government acting as a contracting party or a sovereign? If its as a contracting party, which is what I presume, contractors can rely on the terms of the contract and can argue that the change is not within the general scope of the contract and the changes clause (e.g., changes (1) Description of services to be performed; (2) Time of performance; (3) Place of performance of the services). As previously stated, I believe there are arguments for and against such an action being within scope. However, making the site unavailable can make contract performance untenable. This can raise arguments for a governmental breach of contract. My point is that there are arguments for and against it being within scope; and how best to incorporate the new requirement. I wanted to pull on the string to see where it went. Who knows what the courts or board of contract appeals would find? To be clear, I like the approach and argument ji posted. The question is how to go about incorporating it into a contract: as a contracting party via a formal modification in a way that could survive a dispute (e.g., change in the statement of work or clauses); or incorporating compliance operative of a sovereign act.

@WifWaf Scope analysis differs in bid protest forums and contract dispute forums and you have referenced a bid protest. Can we first agree on the common factors used to determine if a modification is out-of-scope [of the contract]? 1. Changes in the Function of the Item or the Type of Work. 2. Changes in Quantity. 3. Number and Cost of Changes. 4. Changes in Time of Performance. 5. Acceptance of a Change. The new COVID clauses add new requirements that remain indefinite. These indefinite requirements evaluated through the lens of contractors—not wanting the additional responsibility of performing and funding the new work—could be argued as out of scope. Also, what is the consideration in this modification action? I presume monies, but how much? What is the government’s estimate for the new obligation? (Thinking ADA)

I believe @Retreadfed is concerned that nothing expressly requires the predecessor contractor to identify which employees are in danger of losing their jobs because of the loss of the contract.

@Retreadfed, Would you agree that the contracting officer and successor contractor are provided enough information to find out who may be affected? Successor contractors have done so in the past, in my experience. I guess we can always find a problem if we look for one. But you are right in that the FAR Council has an opportunity to clearly address the perceived flaw. @FAR-flung 1102 I mentioned 52.222-17 after Retreadfed brought up the old EO. It’s the one I think was in effect at that time. I could be wrong.