Forbearance vs. Change Order

[ji20874]

I am okay with a contracting officer's being done bilaterally as a reasonable (and maybe even preferred) practice.  However, we need to remember that a contracting officer's forbearance can also be done unilaterally.

[Vern Edwards]

Forbearance is neither a matter of agreement nor a bilateral act to be documented in a mod. Cibinic, Nash, and Nagle describe it as follows in Administration of Government Contracts, 5th, page 848. I have omitted case citations:

"Failure to terminate immediately when the the right accrues does not constitute a waiver. The contracting officer has a reasonable period to investigate the facts and determine what course of action will be in the best interests of the government."

Forbearance is inaction pending a decision.

Wisdom dictates that when the CO thinks the contractor has defaulted and plans to forbear, he or she should notify the contractor that the government will forbear taking action pending a decision about what it will do. According to Cibinic, Nash, and Nagle:

"If the contractor is incurring costs  in continuing to perform the government has an obligation to act expeditiously in making a decision."

[Vern Edwards]

 

Here's an example of a portion of a CO's letter notifying a contractor that the government would forbear, copied from the Court of Claims decision in the matter of K-Con Building Systems, Inc., v. U.S., 114 Fed. Cl. 595, 600 (2015):

Quote

Despite your failure to complete the contract in the allotted time, I have determined it is in the Government's best interest to forbear from terminating your contract for default and permit you to continue work under the contract. Continuation of performance is solely to mitigate damages and impacts to the Government and is not to be construed as a waiver of the Government['s] rights and remedies under the terms of the contract. You will be assessed liquidated damages in the amount of $589.00 per day until all work is complete and beneficial occupancy has occurred.

And here is the CO's notice of termination for default of the same contract, from K-Con Building Systems, Inc. v. U.S., 131 Fed.Cl. 276, 307 (2017):

Quote

We have determined that it is no longer in the best interest of the Government to forbear termination for default for your failure to complete within the established completion date.... [Y]our performance in the forbearance period continually fell well behind any completion schedule you had submitted. Your continued failure to make progress has made it clear that it is no longer in the best interest of the Government to forbear termination for default. In accordance with contract clause FAR 52.249–10, Termination for Default (Fixed–Price Construction) (APR 1984), you are hereby notified that this contract is terminated for default for failure to make progress and failure to prosecute the work with the diligence that will insure its completion within the time specified in the contract including any extensions. Therefore, your right to proceed with work under this contract is terminated AS OF THIS DATE. The Government may cause the contract to be completed by others in accordance with the above clause and you will be held liable for any increased costs occasioned thereby. These costs will include liquidated damages in the amount specified in the contract that will accrue from the current contract completion date to actual completion of work. The Government reserves all rights and remedies provided by law or under the contract in addition to charging excess costs occasioned by completion of the defaulted contract.

You do not need and should not write a modification if all you're doing is exercising forbearance. Forbearance does not change a contract.

The notices of forbearance were not an issue in the complicated case. I quote them only as examples. The case is very complicated and produced several decisions, but the court ultimately ruled in favor of the government.

See also "Waiver of the Right to Terminate for Default: The Impact of No-Waiver Language," The Nash & Cibinic Report, December 1999:

Quote

A recent case, Abcon Associates, Inc. v. U.S., 44 Fed. Cl. 625 (1999), 18 FPD ¶ 142, 41 GC ¶ 452, permits the Government to avoid a waiver of its right to terminate a construction contract for default by formally notifying the contractor, after there has been a failure of performance, that nothing the Government does may be construed as a waiver of its rights because it is exercising its right of forbearance in perpetuity. This holding adds to a line of cases that we identified as imposing significant risks on construction contractors in "Waiver of the Right to Terminate for Default: Can It Happen in Construction Contracts?," 2 N&CR ¶ 71.

And "Waiver of the Right to Termination for Default: Can It Happen In Construction Contracts," The Nash & Cibinic Report, November 1988:

Quote

Generally, the election to permit continued performance is found in the Government's course of conduct after the contractor has failed to perform in accordance with the contract requirements. There are two things that the Government may do during this period. First, it may take a reasonable time to make the decision to terminate, Frank A. Pelliccia v. U.S., 208 Ct. Cl. 278, 525 F.2d 1035 (1975). The period is usually called the “forbearance period.” Second, the Government may continue to perform the normal acts of contract administration for a reasonable period of time, H. N. Bailey & Associates v. U.S., 196 Ct. Cl. 166, 449 F.2d 376 (1971). What is a reasonable time in both of these circumstances is highly judgmental depending on all of the circumstance of each case.

[C Culham]

 

I have never said that a Mod is required.   I in fact stated or otherwise implied that either a letter or a SF-30 could be used to document the agreement of forbearance.   As has been mentioned in this thread forbearance as neither a remedy or term of the guiding principles of the FAR.   This leaves it to us all to debate.  As such my read of references made in this thread and most especially that provided by " Williston on Contracts, 4th, § 7.44, Forbearance or promise of forbearance " the matter of forbearance is best documented in writing to ensure what the the promise is/was that prompted the forbearance.    

The above said does not the FAR actually handle the matter of forbearance through the guiding principles of the FAR regarding Termination?  The contractor must request forbearance, is an oral request okay?    Does the government respond orally or in writing?  Seems the FAR supports everything shall be writing but my read could be wrong.  Where it goes haywire based on all the cases that I have found supports that due diligence was not performed in documenting, communicating and solidifying the act of forbearance and the promises made for such forbearance. 

Just for jollies - with emphasis added

43.301(a) The Standard Form 30 ( SF 30), Amendment of Solicitation/Modification of Contract, shall (except for the options stated in 43.301(a)(2) or actions processed under part  15) be used for- ...Supplemental agreements (see 43.103)

43.103 (a) Bilateral. A bilateral modification (supplemental agreement) is a contract modification that is signed by the contractor and the contracting officer. Bilateral modifications are used to-... (3) Reflect other agreements of the parties modifying the terms of contracts.

All references I have read here or otherwise require consideration for forbearance, that consideration need not be (in my words) something tangible but the mere agreement to forbear based on whatever promise the contractor places in the request for forbearance.  As forbearance as a promise is hinged on consideration even if the mere agreement to forbear it would seem that it is an act of modifying the terms of the contract.   A unilateral forbearance does not seem possible in my book as you need a request with a promise.

I will leave you all to wring your hands regarding letter, SF-30, "modification" but in my book all would work as a way to document and the documentation done bilaterally would undoubtedly be strong support to the governments forbearance should what the government agreed to in allowing forbearance is in conflict later.

Simple view - Document, document, document!

 

 

[ji20874]

10 minutes ago, C Culham said:

I in fact stated or otherwise implied that either a letter or a SF-30 could be used to document the agreement of forbearance.

An agreement is not necessary as a precursor to forbearance.  The contracting officer can do it unilaterally and without any agreement.

10 minutes ago, C Culham said:

The contractor must request forbearance, is an oral request okay? 

It is not necessary for the contractor to request forbearance -- the contracting officer can forbear termination without any request from the contractor.

10 minutes ago, C Culham said:

Seems the FAR supports everything shall be writing but my read could be wrong. 

Forbearance need not be in writing, at least not early on.

10 minutes ago, C Culham said:

As forbearance as a promise is hinged on consideration even if the mere agreement to forbear it would seem that it is an act of modifying the terms of the contract.

Forbearance need not be a promise hinged on consideration.

10 minutes ago, C Culham said:

A unilateral forbearance does not seem possible in my book as you need a request with a promise.

In my book, a unilateral forbearance most certainly is possible.  There is no need to "request with a promise."

I guess we have different understandings of forbearance. 

[C Culham]

15 minutes ago, ji20874 said:

I guess we have different understandings of forbearance.

Yep and we will never change each others.  That's how it goes - que sera sera.   But with hope that beginner practitioners will seriously think about it rather than reading rehashed posts or those that lack reference..    Forbearance is widely used in the financial markets.   Occurs in other contract settings as well but within the guiding principles of the FAR?  That fact has been answered.

For thought!

https://www.law.cornell.edu/wex/forbearance

forbearance  Forbearance is the intentional action of abstaining from doing something. In the context of the law, it refers to the act of delaying from enforcing a right, obligation, or debt. For example, a creditor may forbear legal action against the debtor if they settle the debt payment with new payment conditions. Another example is a mortgage forbearance agreement under which the lender agrees to forbear its right to foreclose the mortgage, and the borrower accepts a new payment plan that provides temporary payment relief.

https://www.law.cornell.edu/wex/consideration 

consideration -  

 

consideration

 

Consideration is a promise, performance, or forbearance bargained by a promisor in exchange for their promise. Consideration is the main element of a contract. Without consideration by both parties, a contract cannot be enforceable. For instance, if a person used the money to purchase an apple, the apple is the merchant’s consideration, and the money is the person’s consideration.

Types:

• Consideration could be a promise, performance, forbearance, or property with legal value, but the economic benefit is not required.
• A gift or gratuitous promise cannot be a consideration for they have no bargaining. The past performance also cannot be a consideration as there is no exchange.

Substitute for consideration:

• A contract without consideration could be enforceable if it has a substitute. Substitutes are promissory estoppel or detrimental reliance under Restatement (Second) of Contracts, or good faith modification under UCC.
  • Promissory estoppel/detrimental reliance: A contract without consideration is enforceable if the nonperformance of the promisor will cause injustice. Elements of promissory estoppel are (i) the promise has reasonable, foreseeable, and detrimental reliance on the promisor, and (ii) the enforcement of the promise is necessary to avoid injustice.
  • Good faith modification: A modified contract is a kind of new agreement, which changes parties’ obligations and then requires new consideration. But contract modification made in good faith under UCC is enforceable even without consideration.

[Vern Edwards]

@ji20874You are on the verge of a wormhole into Carl's universe.

Turn back. At maximum warp. To go on is futile.

For what it's worth, I agree with every word of your last post.

[C Culham]

On 11/2/2022 at 9:32 AM, Krimz said:

We rarely allow a contractor to perform in forbearance unless the work is nearly complete, or we have some kind of assurance that the work will be completed within a reasonable amount of time beyond the original completion date.

 

On 11/2/2022 at 9:50 AM, Vern Edwards said:

I don't have better feedback than that. That's excellent feedback.

So now I am confused.   

 

On 11/2/2022 at 8:19 PM, Vern Edwards said:

Actual forbearance is generally evidence of an agreement to forbear, and when viewed in connection with other facts and circumstances relating to the promise, an implied promise to forbear may be established which will be deemed to supply the necessary consideration.

Even more!

Really?   Just give forbearance non-action, no request, no discussion, no negotiation, no documentation just give it unilaterally?   Very slippery slope in my view but if that is your advice to a  beginner practitioner so be it.    I for one believe in the transparency, fair dealing and good communication in my practice of contractual relationships.

[C Culham]

For the good of the order....

My struggle I clearly understand.   Here is my dilemma.

Throughout my career and into today it has been my understanding that a CO may not alter a contract to the prejudice of the government unless the government receives corresponding contractual benefit.  If the CO forbears performance beyond a contractually stated PoP the guiding principles of the FAR put forth the ideal that the contractor provide consideration to the government for giving up the right to PoP by a certain date.   As I read responses from both Vern and ji they believe that they can provide forbearance unilaterally to the contractor without mutual agreement as to what the contractual benefit will be.  Nothing can be assumed, not that contractor will perform etc.  Without mutual agreement of the parties of what that benefit to the government will be I do not understand how a unilateral forbearance becomes a right under a contract.    

In the world outside the FAR my read is a contract that is forbeared needs the mutual agreement.   My thinking is that the government via its various acquisition statutes and applicable regulation (FAR) and the FAR clauses have attempted to solve the matter of forbearance with regard to acquisition.  Its called rights under inspection clauses, or rights under the termination clauses.  While not conclusive support of my idea I do find interesting that the term "forbearance" can be found in various places throughout the CFR but no place in 48 CFR 1-99!  As for case law and its sometimes use in cases, as exemplified by those offered in this thread, it is a legal concept applied to a specific matter in dispute. 

 

[Vern Edwards]

@C CulhamThe last quote that you attributed to me in your next to the last post is your edit of a passage that I quoted from Williston, which you quoted out of context. I attribute that not to any ill will on your part, but to your confusion, as you called it.

All:

Forbearance comes up in many legal contexts. In contract law, forbearance in response to a breach is an option of the injured party. The breaching (defaulting) party can, of course, ask for forbearance, in which case the injured party can demand something in return (consideration), which, if given, would create a binding forbearance agreement. But that's not the issue in this thread. The issue in this thread is whether an agreement, a mod, and consideration are necessary in order for a CO to forbear T for D if the contractor breaches. THEY ARE NOT NECESSARY!

Forbearance is not a concept unique to government contracting. The FAR System does not mention forbearance. And the guiding principles that you so love are of no use in understanding the concept of forbearance as applied in government contracting or the procedures for exercising forbearance in government contracting. Forbearance usually comes up as a defense against contractor assertions that the government has waived a breach.

Forbearance does not deprive the government of its entitlement to damages for a breach. it is simply a decision to hold off on T for D while deciding what to do. BTW, a CO clearly has the authority to forbear or to seek compensation for breach. But he or she might not have the authority to waive a breach.

See Carberry and Johnstone, Waiver of the Government's Right to Terminate for Default in Government Defense Contracts, 17 PubConLJ 470 (1988):

Quote

Under the waiver test set forth in DeVito the contractor must establish initially that the government's conduct during the period following the delivery date specified in the contract showed an intention not to terminate the contract. The courts, however, do permit the government to take certain actions without encouraging performance. For example, the government is entitled to investigate the circumstances surrounding the default to determine whether the contractor's failure to deliver was excusable, to consider whether termination is in the best interests of the government, and to process the termination documents.

During this investigatory interval, known as the forbearance period, the government may also issue show cause letters, inquire as to the contractor's present status and completion plans, conduct demonstrations and minor inspections of the contractor to apprise itself of the contractor's progress or capabilities, or confer with the contractor regarding an extension of the delivery date in exchange for consideration, without the risk of waiving the original delivery schedule.

The doctrine of forbearance cannot be read, however, as permitting the government to refrain from issuing a notice of termination over an extended period of time, while simultaneously allowing the contractor to continue with performance. If the government delays too long, or if its conduct encourages continuation of performance, the inference is that time is no longer of the essence and the delivery schedule has been waived.

There is no hard and fast judicial standard to distinguish between situations in which the government has merely displayed a benevolent attitude toward a delinquent contractor, and circumstances where its actions may reasonably be construed as encouraging continued performance. Nevertheless, the numerous decisions of the Armed Services Board of Contract Appeals (ASBCA) invoking the waiver doctrine in particular cases are illustrative of the distinction.

There is a plentiful literature on forbearance in response to breach (default). The concept is essentially very easy to understand. I have provided several references in this thread, including, in addition to the article I quoted above, Williston, Perillo, and Cibinic, Nash & Nagle.

I urge "beginner practitioners" who want to understand the concept of forbearance to seek out and read those references and others and ignore the confusing back and forth in this thread.

In short, don't take my word for it. READ!

[C Culham]

1 hour ago, Vern Edwards said:

The last quote that you attributed to me in your next to the last post is your edit of a passage that I quoted from Williston, 

Agreed due my ability to (not)manage the tools of Forum but not out of context.  It was your offering to support your premise stated in the particular post.

 

1 hour ago, Vern Edwards said:

In short, don't take my word for it. READ!

Agreed and what I now find interesting  is this.

 

1 hour ago, Vern Edwards said:

The issue in this thread is whether an agreement, a mod, and consideration are necessary in order for a CO to forbear T for D if the contractor breaches. THEY ARE NOT NECESSARY

You marry T4D with forbearance which causes me to conclude that forbearance is like the Christian Doctrine a legal concept that can only be applied to a contract matter by a court not something the CO does.  The CO does what the FAR and the termination clause provides.  Example the notices of FAR 49.607 are in the context of this discussion the forbearance that you now want to make the matter of discussion but per FAR they are Cure and Show Cause. 

But don't take my word for it, I just continue reading with an open mind.

[Vern Edwards]

Forbearance is not like the Christian Doctrine.

Cure notices and show cause notices are not agreements, mods, or consideration. They are, let's see... notices. And they are not required in all cases.

Warp five, Mr. Sulu.

[ji20874]

11 hours ago, C Culham said:

You marry T4D with forbearance which causes me to conclude that forbearance is like the Christian Doctrine a legal concept that can only be applied to a contract matter by a court not something the CO does.

The contracting officer is the one who forbears, not the judge.

[C Culham]

1 hour ago, ji20874 said:

The contracting officer is the one who forbears, not the judge.

Nope.  The CO takes an action that the judge determines to be forbearance.  There is absolutely no allowance in a FAR contract that provides for "forbearance".  At least by my read.  I would like to see the clause that unilaterally allows "forbearance" please.

[joel hoffman]

2 minutes ago, C Culham said:

Nope.  The CO takes an action that the judge determines to be forbearance.  There is absolutely no allowance in a FAR contract that provides for "forbearance".  At least by my read.  I would like to see the clause that unilaterally allows "forbearance" please.

Read the Defaults clauses. 

[joel hoffman]

On 1/19/2023 at 7:33 AM, C Culham said:

Letter or mod, which I did not state it needed to be,  I still think bilateral.  A letter can be bilateral.  Contractor you agree to perform without extension to the POP, we agree not to terminate if you do so.  I could see more meat to it but that is my thought.  If a letter, with a place for the contractor to sign and return.

For construction or A/E contracts, the contractor is already required to complete the contract. No agreement by the contractor is necessary to require it to complete the contract.

Depending upon the specific circumstances, the contractor is required to provide the required services or supplies. No agreement by the contractor is necessary to require it to complete the contract.

The defaults clauses state that the government MAY terminate the contractor’s right to proceed.

We don’t need to go into the weeds about excusable vs Non-excusable delays, impossibility of performance, damages for breach of contract, other damages, etc. LD’s when applicable, etc.   Whole books and chapters are written about that. 

 

Edited January 20, 2023 by joel hoffman

[C Culham]

23 minutes ago, joel hoffman said:

Read the Defaults clauses. 

I have please quote where it says "forbearance".

The default clauses are a part a contract (promises agreed to mutually).  The contractor agreed by signing the contract that they could be defaulted inclusive of allowance for a cure.  As such it is not forbearance.  All seem to be forgetting the the FAR has terms of art specific to government contracting. 

[joel hoffman]

Forbearance - Oxford Dictionary

noun

noun: forbearance

patient self-control; restraint and tolerance."forbearance from taking action"

 

LAW

the action of refraining from exercising a legal right, especially enforcing the payment of a debt.

We are talking about the Government’s legal right to terminate or to decide not to terminate for failure or refusal to timely proceed , if such delays are inexcusable. 

[joel hoffman]

“If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.”

[Retreadfed]

Carl, I learned a log time ago that laws, regulations and contracts mean what the courts say they mean.  In this regard,  here is an extract from FAR 52.249-8, which covers defaults of fixed price supply or service contracts "The Government may, . . . by written notice of default to the Contractor, terminate this contract in whole or in part if the Contractor fails to-(i) Deliver the supplies or to perform the services within the time specified in this contract or any extension."   Notice that the clause says the government "may" terminate the contract for default.  This indicates that the CO is permitted discretion in whether to T4D the contract.  FAR 49.402-3 sets forth the procedures for a T4D.  Compliance with those procedures takes time and does not occur immediately.  Essentially, the time it takes for the CO to follow 49.402-3 is the period of forbearance.  Significantly, nothing in 49.402-3 requires the CO to notify the contractor that (s)he is following 49.402-3 and thus is forbearing from terminating the contract or get the contractor's agreement that the CO is following 49.402-3.  The courts and appeal boards have held that the CO is entitled to a reasonable amount of time to comply with 49.402-3, i.e., forbear from terminating the contract.  However, if the CO takes too long to make a decision on the T4D and other factors are present, 49.402-3(c) comes into play and the CO can unilaterally establish a new delivery date.

On another point, do not confuse the concept of forbearance being consideration and the need for consideration for the CO to forbear from terminating a contract for default.

[Vern Edwards]

It is too bad that so many of you do not have access to literature that could be of help in understanding obscure concepts like forbearance.

The following is quoted from a very interesting 39-page article by Sean J. Young that appeared in the Fall 2007 issue of Florida Coastal Law Review. The title of the article is Reaping the Benefits of "Forbearance" in Contract Through the Doctrine of Election, 9 FLCLR 65. I could not find a website that provides free access. I have omitted footnotes.

Quote

When a contract is breached, the injured party can respond in many ways. This Part will briefly discuss four general types of responses to breach based on traditional conceptions of contract law, introduce the response of “forbearance,” and present its benefits.

A. Four Possible Responses to Breach

When a breach occurs, the injured party has several options available that can be generally summarized as follows.

First, the injured party may exercise her “formal remedies,” a term this article uses to encompass the injured party's statutory and contractual rights to sue or cancel the contract. The injured party may seek monetary damages or specific performance, and she may obtain this from a court, through settlement, or through alternative dispute resolution. Separate from her right to sue is her right to cancel the contract, which simply releases either party from any obligation to perform any part of the contract.

Second, the injured party may object to the breaching party, recognizing that a breach has occurred and implicitly or explicitly threaten to invoke formal remedies the next time a similar breach occurs. Objection may consist of a simple letter. The injured party objects not only to encourage the breaching party to conform next time, but also to avoid legally relinquishing her right to cancel on the basis of similar breaches in the future. In other words, she does not want a court to later construe her silence as indicating that the injured party will allow such breaches to occur.

Third, the injured party may acquiesce, which does allow the breaching party to commit similar breaches in the future without formal consequences. In effect, acquiescence changes the terms of the contract such that the breaching party is no longer held to a specific contractual requirement. Not surprisingly, injured parties tend not to want to acquiesce, but sometimes, the injured party may no longer care about that underlying provision or has become too dependent on the continuation of the contract. Acquiescence usually occurs through mere inaction, but it can also be a declaration that the injured party is thereafter permitting such breaches.

Fourth, the injured party may seek to negotiate a new contract with the breaching party. A breach may indicate to the injured party that the breaching party simply cannot or will not conform to the contract anymore. If suing is too costly, the injured party may seek to renegotiate the contract to salvage some of its benefits.

B. "Forbearance" As A Fifth Response

A fifth option is “forbearance,” which is less discussed in contract literature. Black's Law Dictionary essentially defines forbearance as inaction—not invoking any formal remedies following breach. However, inaction can lead to two different legal results, which the traditional definition fails to distinguish—inaction that results in the contractual terms changing to accommodate similar breaches in the future, and inaction that maintains the terms of the contract. The former type of inaction is “acquiescence,” as defined earlier, since it results in a change in the contract. However, scenarios where the injured party does not want a change in the contract following breach deserve separate analytical treatment. Therefore, in this article, “forbearance” will be limited to the latter type of inaction—inaction that still maintains the terms of the contract.

Forbearance has many benefits. It increases the potential for future lucrative contracts between the parties and encourages conformity to concurrent contracts. It avoids the trust-destroying consequences of objection. It maximizes the utility gained from idiosyncratic investments. Furthermore, it maximizes non-economic benefits gained from the social relationships that surround and reinforce the contract.

Yet, forbearance is discouraged, if not outright prevented, under current contractual regimes. Specifically, this article will explore how the doctrine of “waiver,” which currently governs when a contractual party has relinquished her rights, discourages forbearance. Furthermore, this article will explore how even the suspension of the doctrine of waiver can discourage forbearance.

Note that the author has described forbearance as an "option," i.e., a choice. A contracting officer may choose to forbear T for D for any of a number of reasons. A CO's authority to do so is provided by FAR 1.602-1(a) and 1.602-2. See also FAR 49.101 and Subpart 49.4.

Alternatively, if a contractor raises waiver (inaction) as a defense against T for D, the government might argue forbearance as a defense and a judge might rule that a reasonable delay in taking action was forbearance, not a waiver of the government's rights.

Unless someone has something informative to add, or a substantive new question, I suggest that we consider this thread to be closed. It's descending into pointless commentary.

[C Culham]

18 hours ago, Vern Edwards said:

substantive new question

If the "Fifth Response" of forbearance as an option is the option that is taken how does the full article distinguish how forbearance as the selected response of the five is communicated between the parties?    In writing or?  

 

 

[Voyager]

Wow, this topic’s resurrection leading to Vern’s last post has really helped answer the OP!  Thank you all, but especially @Krimzand @Vern Edwards.

I fear many COs use the third option, acquiescence, instead of the fifth, forbearance.  Beginners and others alike should resolve to change that (see Krimz’s posts to learn how to forbear).  My OP asked for the difference between the fourth option, new contract (or change order to be followed by supplemental agreement), and the fifth option.  I’m glad I asked, because the fourth is a lot of hassle (and changes clause is probably the wrong authority).

[Vern Edwards]

1 hour ago, C Culham said:

If the "Fifth Response" of forbearance as an option is the option that is taken how does the full article distinguish how forbearance as the selected response of the five is communicated between the parties?    In writing or? 

The article does not describe, prescribe, or suggest a procedure.

[C Culham]

17 minutes ago, Vern Edwards said:

The article does not describe, prescribe, or suggest a procedure.

Thank you. 

 It leaves the question as to how the inaction of forbearance becomes enforceable. 

My personal conclusion - Leaving forbearance expectations to the imaginations of both parties own minds seems less acceptable than documenting the the expectations of forbearance in writing when both parties subscribe to forbearance as the option selected.