Philistines

Thank you all for your thoughts. I think we have ridden this train to the end of the line. Differences of opinion are always welcomed in my world as it helps a conversation flourish and guides my research. I always worry when everybody agrees with me without debate or discussion. I do truly appreciate your experience and time to help me think an issue through. Regards, Phil I. Stines

Thank you for your thoughts. I did not offer to many specifics as I did not want to put a finger on the scale. In my personal view, there is considerable leeway granted by the FAR in a situation where the contract is in place and it is a contract administration issue defined (perhaps erroneously) as an action that does not modify the contract (Scope, Time, or Money). In my work, we have occasion to perform audits and will have costs questioned due to a variety of reasons but most frequently because the administrative process was not followed. In those cases, our COs are authorized to issue determinations to make payment if they feel that payment is justified. Additionally, I look to FAR 33 dealing with claims. There seems to be incredible leeway for a CO to exercise their authority to resolve a claim without a ratification. IMO, if a COR or similar unauthorized individual issued an unauthorized approval and the contractor took action as a result, then it would seem that they would eventually file a claim. In that scenario, the CO could make a determination to pay the claim without a ratification. It is also my experience that the key to success in any team environment is to direct your effort into the areas that add the most value. Every hour of your day is valuable so you should use it in the manner that will return the most value. Herding a clutter of cats into executing a ratification is far more time lost and thus value lose than simply allowing the responsible parties on the ground to manage a subsequent approval or fight over a claim. Again thank you for your inputs.

Apologies for the lack of clarity. Your understanding is correct. These approvals would not modify the contract in terms of funding or the period of performance. They are simple approvals associated with the performance of the contract. The government wants to issue the approvals. Some advised that the cognizant CO simply issue an approval after the fact and document the contract file. Others have asked if this is in fact a ratification because it is an unauthorized commitment. Examples - In a recent case, the contractor started performance (issued a sub-contract) to perform work authorized in the contract but subcontractor approval was also required in the contract. In another case, a vehicle that was included in the contract budget was approved and subsequently purchased. Again, the contract required prior approval before purchasing the vehicle. We are just interested in other USG practices and collective experiences.

We are reviewing some internal processes for contract administration. I was curious how individuals would handle unauthorized approvals issued within scope under an existing mechanism. Scenario - You are working on a cost plus fixed fee (term or completion) and an individual with apparent authority either a COR or a unwarranted contract specialist issued an approval. Assume in this instance that the Contracting Officer would have issued the approval. However, the request for approval did not reach their inbox through no fault of the contractor. There are funds available and the work is within the scope of the contract. The only issue is that individual who issued the approval did not have the authority. Example of some possible approvals would be to purchase equipment or to enter into a subcontract agreement. How would you correct the situation? What would you call it? Thank you for sharing your collective experience.

Joel - We don't really have any issue with J&As. I hate doing them when other options exist. The main challenge with the orders is that we are struggling to estimate costs and requirements for implementation given all the unknowns ahead regarding the work environment. C Culham - I suppose. A lot of agencies have policies requiring clearances on J&As, requirement statements, funding, and bathroom passes. I could go once more into the breach and again and again while pointing out how certain policies increase workload, add no value, and reduce no risk. Have done it many times. But at the end of the day, I need to get the work done so I play the hand I am dealt.

ji20874 - Yes, they do. It's called a clearance (Is it legal?) but it sure looks like an approval (Should you do it?).

In spirit and in personal practice, I am in complete agreement with Don that we should manage contracts in a way that the government gets its needed requirements in a reasonable way without disadvantaging any of the parties including those who lost the initial competition. Simply put, do what makes sense for the government without screwing anybody over. Another good rule - If the FAR does not say NO, then it must mean YES. Unfortunately, living in a litigious society, legal counsel will often advise a party to do things that are not necessary simply to insure legal protections against a potential future liability such as putting a warning label that says 'Contents Hot' on a cup that is also labelled 'Hot Chocolate'. A better world it would be if we were left to our own devices to learn that Hot Chocolate is indeed Hot. (But what would we do with all the empty courthouses?)

ji20874 - It's not the J&As are problematic in theory. We deliberately created a cumbersome process to make people not use them. Once you release the Bureaucratic Kraken though, you find it very hard to bind it again. I am simply trying to lighten the load of an overworked 1102 workforce faithfully fighting the good fight to get the work done. Whenever I see a process that does not add value or impact outcomes, I always try to remove it. Thank y'all for the good input. Others feel free to opine if the feeling strikes.

ji20874 - Not sure the point that you are making. Perhaps you're restating that the Delays clause is not a viable choice in regards to an IDIQ ordering period. Or perhaps you are referring to the term adjustment. It is our legal team's opinion that you cannot make any adjustment but time under the 52.249-14 that we can only add time to the contract.

My thought on the Changes clause is the Time of Performance. A small hook to hang my hat but I just need it to hold up for a little bit. The actual scope meaning the work to be done doesn't change. We just need more time. RE: Delays - We're a polite bunch. We prefer to say that the contractor could not perform rather than failed. But yes, the clause is justified when an event impacts the contractor, not the government. USG caused delays opens up the issue of equitable adjustments, which does not apply here.

We have variations but typically, it states five years from the date of signature. Though some COs will put in a specific date. I do like your thinking though... Some would say that we were open for business but if other business (pandemic response) overwhelmed us, then we could not order during that time frame. Is that where you were going?

ji20874 - We do use those from time to time. The posting requirements still mandate multiple postings. But yes, the J&As will look incredibly similar. From a process (approval/clearance perspective), it's the same amount of work.

@joel hoffman That is correct. Legal counsel and most of the the CO community wants us to write a J&A. We will but I wanted to see if anybody else had any experiences or thoughts on using either clause. The GAO has been fairly generous towards agencies in determining when competition is triggered by the Changes clause. My thought was 'How would the competition have been impacted if this change (longer ordering period) was known at the time of the solicitation? The only impact that I see is that maybe somebody would have bid on a six year IDIQ that did not bid on a 5 year one but I consider that a stretch given the competition that we have. Only companies who did not bid would have standing to protest on that basis. None of the losing bidders could argue that they were disadvantaged by the longer extension. IMO. I'm just fishing for thoughts or experiences.

JI20874 - That is what we are doing. Using the Delays clause to extend TOs and J&As (our JEFOs) to extend IDIQs. However, the non-comp process is purposefully burdensome and we are looking for ideas on extending ordering periods. I haven't found a GAO case dealing with the issue so it could be territory that legal counsel has fenced off.

Definitely non-commercial. They are for specialized technical services almost exclusively. Typically, they are CPFF but there are some instances of FFP and T&M. Supplies can on occasion enter into the equation in combination with the services but we do not use our IDIQs for supplies.