Vern Edwards

Yes. The contract should be written so that there is a contract line item for each product or service for which orders can be placed. See FAR Subpart 4.10. Offerors may then be permitted to qualify as responsible for the purposes of competing for future orders for all or only some of the line items. If, after contract award, you want to allow contractors to qualify as being responsible with respect to additional line items and thereby become eligible to compete for orders for those items, you can write a clause that reserves the government's right to let additional contractors apply to be determined responsible for additional line items at a later date. I do not know of any standard clause for that, but there may be one in some agency FAR supplement.

Welcome back, Jon. I got your email and will respond soon. Rather than say what kind of self-study is best (I'll do that later), I thought I'd show what kinds of stuff I've studied. I'm doing that because it's spring cleaning time and my wife has ordered be to get rid of some of my 50 file boxes of old stuff that I couldn't bear to throw away. So I started going through it and tossing some stuff. Here's a short, random, eclectic list of some of the stuff I found in one box. This is stuff I'm keeping. Some of this is stuff I copied from a book or journal in my local public library, and I don't have all the source information. BOX # 30 Contract Negotiations and Results in Aircraft Procurement: Case Studies of the B-52 and B-58, Preston, Rand Corp, 1962 Decisionmaking Among Multiple-Attribute Alternatives: A Survey and Consolidated Approach, MacCrimmon, Rand Corp, 1968 SMARTS and SMARTER: Improved Simple Methods for Multiattribute Utility Measurement, Edwards (not me) and Barron, 1994 Toward a Definition of Organizational Incompetence: A Neglected Variable in Organizational Theory, Orr and Shafritz, 1994 The Role of Questions in Teaching, Thinking and Learning (webpage download) Three Categories of Questions: Crucial Distinctions (webpage download) The Critical Mind is A Questioning Mind: Learning How to Ask Powerful, Probing Questions (webpage download) What Should We Teach About Questions? Harrah, 1982 The Nature of Questions (webpage discussion) How to Ask a Smart Question, Snyder (webpage article) 7 Must-Ask Questions in Any Negotiation, Lewis-Fernandez, businessknowhow.com Karrass Effective Negotiating Tip: What Questions Do You Ask, webpage download Use Clever Questions in Your Negotiations (webpage download) How to Ask a Question, Johnson, Review of General Semantics, 1983 What Is A Question? Cohen, The Monist, 1929 The Iliad, or the Poem of Force, Weil (1945) Slow Reading - the affirmation of authorial intent, Fletcher (webpage download) 2013 A Theory of Questions and Question Asking, Ram, Georgia Institute of Technology, 1991 A Lesson from Michelangelo, Fenton, NY Review of Books, 1995 Alternate Fighter Engine Competition: Source Selection Advisory Council Proposal Analysis Report, 1983 Military Aircraft and Aircraft Procurement: The Case of the C-5A, Knaack, USAF History & Museums Program The Dismissal of A. Ernest Fitzgerald by the Department of Defense, congressional hearings, 1969 The Source Selection Decision Process in Aeronautical Systems Division, Barclay and Nido, AFIT-LSSR 12-81 (1982) Legislative History of the Armed Services Procurement Act of 1947, congressional hearings, 1948 A Comparison of DOD and Commercial Airline Purchasing Practices, GAO/NSIAD-00-22 (1999) Presolicitation Discussions and the "Unfair" Competitive Advantage, Femino, Army Lawyer, 1990 Legal Theories of Profit, Foreman, Columbia Law Review, 1918 Competitive Bidding: A Comprehensive Bibliography, Stark and Rothkopf, Operations Research, 1979 The Nature of the Firm, Coase, Economica, 1937 Paperwork: The State of the Discipline, Kafka (not THAT Kafka(, Book History, 2009 One box down. Twenty-nine to go. I'll cut a deal with my wife about keeping some stuff. Jon, I know one guy (you know him, too, from Ruth's Chris in Crystal City), who might have more stuff than me. John Krieger of DAU. That guy has a lot of stuff. When I don't have something I call him. Pack rats of the world, Unite!

What!!! We're not going to stop the rockfall from Coyote Wall onto Highway 14 that killed a driver in January? I'm shocked! SHOCKED!

Funny reading that 10 years later.

@LoulWhatever the reason(s) for your (presumably short-term) inability to comply with the telework restriction, you must demonstrate that the problem is beyond your fault or negligence. If your main problem is that some employees have quit rather than commute to the office, be sure to document, in detail, all of your efforts to find and recruit replacements.

😁 @PATRICK3 You have hit upon one of the longest-standing issues in government contract administration—What do you insert in Standard Form 30, block 13c, when you change the contract by mutual agreement? Contract specialists and file reviewers have argued about that since I was a GS-05 novice. I have never heard or given an answer that everyone agreed upon. Can you enter "mutual agreement of the parties" or do you have to cite some statute, regulation, or contract clause? I like "mutual agreement", but I have known plenty of competent people who would say that's dead wrong. They would want to cite some statute or regulation. I know people who would cite the U.S. Constitution. I've seen "United States Code" without reference to a specific section; "48 CFR"; and "FAR Part 43". I'd go along with ji20874's idea of leaving it blank, but I know that many, perhaps a majority, would object to that. The block's there—gotta be filled, right? Great trivia question at the club over beers.

@PATRICK3If I were your CO I would allow you to write one modification that both adds the clause and issues the change order. You have to write it carefully. You (1) add the clause and then (2) issue the change, both via one supplemental agreement, and state that an equitable adjustment, if required, will be made by subsequent agreement. Now some COs might object, stating that adding the clause must be done bilaterally and issuing the change order must be done unilaterally and that those must be done under separate modifications. I don't think that's necessary, but different COs do some things differently. If you can, (1) add the clause, (2) issue the order, and (3) make the equitable adjustment all in one mod. I don't know what type of contract you have, but, arguably, you could assert that the changes clause is in the contract by operation of law (Christian Doctrine) and that you don't need to add it by modification. But it might just be easier to add it by mod. Finally, you don't really need the changes clause if the contractor agrees to the change. But if you think you might make other changes the clause might be needed.

@LoulYou have not said what the contract pricing arrangement is, so I'll choose the most challenging—firm-fixed-price. Look at the Default clause, FAR 52.249-8. Read paragraph (a). It states three bases for T for D, which are failure to: (i) Deliver the supplies or to perform the services within the time specified in this contract or any extension; (ii) Make progress, so as to endanger performance of this contract (but see paragraph (a)(2) of this clause); or (iii) Perform any of the other provisions of this contract (but see paragraph (a)(2) of this clause). Let's say that failure to comply with the telework restriction falls under (iii). The courts and boards have excused a contractor's duty to proceed where it would be unfair or illogical to require it to do so. Having waived the telework restriction, and probably forbidden you to come in to work, I don't think the Government can dictate an arbitrary and unreasonable date for resumption of normal operations unless you agreed to some term to that effect. A knowledgeable and reasonable CO should know that, and should be willing to work with you to reach an agreement. It is not a matter of you wanting the Government "to be nicer" to your company. And unless the contract requires you to resume normal operations within a specified period of time, you probably don't need a contract change or to provide consideration. It is a matter of the time that you are reasonably entitled to in light of the facts of your case, the terms of your contract, and the law of government contracts. That kind of response to you is why I told you to get off Wifcon and call a lawyer. Neither party need be "nice." Both must be reasonable. What is reasonable depends on the facts of your case and the law of contracts. See paragraph (h) of the default clause: The issue before you and the government is what would be a reasonable time for you be able to resume normal operations. Meet with your lawyer, assemble your facts, and negotiate a reasonable resolution. You might need to phase-in resumption of normal operations and the performance of certain tasks while you reassemble and, perhaps, reconstitute your workforce. May I suggest that your company buy a copy of Administration of Government Contracts, 5th edition, by Cibinic, Nash, and Nagle. See p. 828, "Exceptions to the Duty to Proceed," page 830, "Impractical to proceed."

I don't think it will settle the issue for Don, but it might shed some light.

The government could not impose a "fine." But if you could not perform within the contract telework restrictions they might (1) withhold payment on grounds of nonperformance, (2) pay something, but with a deduction for nonperformance, (3) seek a no-cost termination of the contract for convenience, or in the extreme, (4) terminate your contract for default (breach). Much depends on the type of service(s) you provide, the type(s) of employees involved, the types of contracts involved (firm-fixed-price, cost-reimbursement, time-and-materials, etc.), and the terms pertaining to the telework restriction. An attorney will want to know the facts about the contracts, the history and terms of the telework restriction and waiver, their importance to performance, how long the waiver has been in place, the content and date of the notification that the waiver is being withdrawn, and the nature and circumstances of your employee losses and what it will take to replace them. The attorney will be concerned to assess the reasonableness of the government's withdrawal of the waiver in light of all the facts.

@PATRICK3 So you want to (1) add the changes clause, then (2) issue a change order under the clause, and then (3) make an equitable adjustment for the change in a subsequent mod at a later date. And you want to know if you can do (1) and (2) in the same mod. Is that right?

I just realized that, but he hasn't responded to me.

@Don Mansfield@Lionel HutzSee Eyester, "NAFTA and the Barriers to Federal Procurement Opportunities in the United States," 31 Pub. Cont. L.J. 695, the section entitled, "Small Business Set-Aside Exemption," pp. 714 - 718. It might shed some light on your debate, esp. with regard to the interpretation of FAR 25.401(a)(1).

So you want to (1) add the changes clause, then (2) issue a change order under the clause, and then (3) make an equitable adjustment for the change in a subsequent mod at a later date. Is that right?

@here_2_helpThat's kind, but it's demonstrably untrue, and I really am old and intemperate. I'm embarrassed. Sitting here answering a few questions won't fix what's wrong with contracting today. I've tried to contribute by writing, but it has done little good. One of my last surviving mentors feels the same way. I honestly don't know what to do. The greatest book ever written about government contracting will go into its last edition this year. The three finest and most productive writers of government contracting reference works will produce no more. One has passed. One is ancient. And one is seriously ill. The last periodical publication devoted to practical matters will likely cease publication within a year or two, because it's very difficult to find knowledgeable, capable writers. I have tried to encourage some younger people to write, but to no avail. It's verging on impossible to find quality textbook materials suitable for novice and working level practitioners. The books still in print are prohibitively costly for individuals. I have been giving some away as gifts at my own expense in the one class I still teach occasionally. Agencies generally provide poor in-house training. The same is true of the official training institutions, and managerial devotion to their proper maintenance is weak if judged by more than words. There are some centers of excellence, but they are islands. We have a contracted-out government, so contracting and competence in its execution is extremely important to our nation's well-being. But our leaders are too short-sighted to invest in the kind of education and training we need to field a workforce that can interact effectively with an ever-increasingly complex environment. The FAR is over 2,000 pages. The DFARS is another 1,000. And they are just the tip of the iceberg. We are into the second year of a new presidency and still don't have an OFPP administrator (as far as I know). But even if we did the position has been so undermined as to be practically powerless. I have long known that things were bad, but, still, I was shocked when I read that NCMA contract management standard that Don posted and realized that it is now the basis for DOD and civilian agency contracting certification. I have been in something of a state of shock ever since. My own peers in terms of age and experience feel much the same. Thanks for the slap, H2H. I deserved and needed it. It was a sign. Again, apologies to all.

I apologize for being intemperate. If you are looking for answers, begin by admitting that you are ignorant, and teach yourself to write coherent questions. All learning and knowledge begins with questions. Questions that you ask yourself. Questions that you ask of others. If you are trying to learn, the most powerful tool in your "toolkit" is the ability to write a good question. And when you write one, don't bury it under a speculative preface. Again, I apologize. I'm frustrated at the state of our business. It's getting ever worse, and at great cost. Nothing seems to work to fix it, and for some of us old-timers, time is running out. Maybe it's time for me to check out of here again and check into chat room rehab. I'm getting too old and cranky for this.

As to your last comment, read the motto at the bottom of this post. I believe that. What I wrote was what I thought was good advice. I still think it's good advice. I was on your side, and you didn't annoy me. I just felt it was urgent, given the deadline, that you seek legal advice instead of chat room advice. But touché.

But the clause says: If the WTO GPA and FTAs apply, doesn't that contradict a broad interpretation of 25.401(a)(1)?

I think you are misinterpreting FAR 25.401(a)(1). I think that because I have read the Trade Agreements Act. It mentions small business only once, at 19 USC § 2511. That section reads, in pertinent part, as follows: I think that all 25.401(a)(1) means is that the Trade Agreements Act does not preclude the use of small business set-asides. I do not think it means that agencies cannot waive the Buy American Act with respect to countries with trade agreements when conducting a small business set-aside, which is all that FAR Subpart 25.4 and 52.225-11 do. If it meant that, it would mean that small businesses and the government would have to abide by the Buy American Act under a set-aside even when domestic construction materials are too expensive or unavailable. Think of what the implications would be for bonding, which is not an issue under supply contracts. But what do I know?

Ha! So Lionel has got you thinking. I told you that two days ago.

To what does your "NO" refer? Are you saying they are not clueless? Well, au contraire! If they haven't read the clause they are clueless. Paragraph (e) of that clause has been word-for-word the same for more than 30 years, except that 30 years ago the reference to "(d)" was to "(c)". If you are working on service contracts covered by the SCLS and do not understand the clause and how overhead and G&A work you are clueless and in over your head when talking about the price adjustment. The clause creates no significant practical issues or issues of accounting.

I don't recall this having been mentioned in any of the above, but noncompliance with the clause prescription at FAR 25.1102(c) for whatever reason would constitute a FAR deviation. See the definition of "deviation" at FAR 1.401(b): Of course, someone among you is almost certainly going to argue that using the clause in accordance with its prescription would be a deviation as defined at FAR 1.401(a), since you argue that its use is inconsistent with FAR 25.401(a)(1). Either way, someone among you could argue that whichever you decide to do you must proceed in accordance with FAR 1.403. See also FAR 1.405. Forgive me if any of this was mentioned in any earlier post. Seeking a deviation on the basis of the arguments presented in this thread might be a way to resolve the controversy. We work in a utopia of rules.

You won't find answers bickering here. I gave you the best answer you're going to get at this website several posts ago. If you want a better answer write to the FAR councils. I think the civilian agency council handles Part 25.

@WifWaf That's nonsense. You are delving into a matter that is clearly over your head. Price adjustment based on Service Contract Act wage determinations was a well-settled matter more than 40 years ago. The OP is just clueless, as are you.

I would ask for a meeting, right away, disclose my problems, and seek to negotiate a better way for both parties to manage the return to prior conditions rather than to arbitrarily declare March 31 as THE date. When did they notify you? I would definitely seek the advice of counsel, because I doubt that the Armed Services Board of Contract Appeals or the Court of Federal Claims would let them get away with it, unless they notified you of the March 31 return some time ago. Covid was a historically earthshaking event. It was beyond anyone's fault or negligence, except perhaps the president's and the Center for Disease Control's. After two years of massive disruption, it may well be arbitrary and capricious of the government to unilaterally set a date for the return to normalcy. You are not without recourse. Having said that, you will eventually have to solve the problem within a reasonable time and to your customer's satisfaction. Call a lawyer. And get off Wifcon. Your company needs professional advice. March 31 is right around the corner.