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Showing results for tags 'consideration'.
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I wanted to revisit the definition of "appropriate consideration" under FAR 1.108(d)(3) and commercial items contracts that have 52.212-4 in it. The Changes Clause "(c)" there requires that no changes to the terms or conditions of the contract can occur ONLY with a mutual agreement of the parties. So here are my questions: 1. Are these independent authorities to modify the contract? 2. If so, does FAR 1.108(d) provide a unilateral right by the Contracting Officer to modify the contract? 3. If no, can the Contractor refuse to negotiate "appropriate consideration" and prevent a mutual agreement under 52.212-4(c)? 4. Since "appropriate consideration" is effectively a right to an REA, can the Contracting Officer determine that the appropriate consideration is $0.00 if the Contractor cannot actually establish any additional costs to imposing the new clauses under FAR 1.108(d)? 5. What other remedies might the Government have short of a negotiated resolution under the commercial changes clause, other than the Disputes Clause? -
CPFF, completion type contract for R&D. Contract contains FAR 52.232-20. Effort includes a prototype as final deliverable, a demonstration of that prototype, and several data deliverables along the way (including reports). During performance, contractor was months late on delivering several important reports. The contractor does not dispute this fact, but argues that it gave its best effort overall under the contract. Oversight was not as thorough as it should have been, but the COR asked the contractor for the missing reports several times during performance. The contracting officer was not made aware of the late deliveries until one month before the contract expired; as a consequence, perhaps some good opportunities to issue show cause notices were missed. The contracting officer wants consideration for the late deliveries, and has explained his position to the contractor in detail. Why relax the delivery schedule for nothing in return? The contractor will absolutely not provide any form of consideration. Despite being late, all deliverables have been received except for the demonstration. The demonstration is scheduled for two weeks after contract expiration. As the contracting officer, you're considering an extension to allow the demonstration to take place. You'd prefer to formalize the consideration in this modification, but again, the contractor absolutely refuses to provide any. What contractual remedies are available to you? Note: Termination will not accomplish anything for you, because the contract is near completion and you still want to receive the upcoming demonstration. You just want some consideration.
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I am a federal government manager, serviced by a centralized contracting operation. During the ARRA period, we contracted for some outdoor trail exhibits that were to be fabricated by etching features into corten steel. (The exhibits are life-size, depicting a standing person. Features include the facial features, hands, etc.) Contract was design/build. Exhibits were delivered and installed, but within the warranty period the exhibits began to come apart. What we found out was that the exhibits were not etched, but instead fabricated from separate pieces that were glued on to appear as if they were etched. The glued-on pieces are falling off. I can send pictures to anyone interested. The prime contractor states that he did not know the sub would take this approach, and he is willing to replace all the exhibits under warranty. However, it now appears that etching in corten as envisioned is not possible, so the new items will be etched in aluminum and painted to resemble corten. We are willing to accept this approach, but since we do not have good experience with the replacement product, I believe we should ask for an extension of the warranty period in consideration. The contracting officer is unwilling to ask for the extension. My thought is that this is not exactly a latent defect, but is also not what we agreed upon. I have no issue with accepting the replacements, but would like a 3-year warranty just in case something else unforeseen comes up. The contractor states that the replacement materials have been used in other applications and should last 20 or more years, so I'm thinking that a 3-year warranty should not be an issue if in fact the replacement items are as durable as they say. In other words, I believe that in consideration of us accepting an alternative, the contractor should offer something in return (3-year warranty). I would appreciate any thoughts or comments. Thanks