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Amend vs. Modification


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Does anyone have a good way to explain the difference between amend and modification? 

I understood it as Amendments were to our solicitations, PWS, SOWs, any attachment to the contract, but a modification is what we are doing to the contract to replace an attachment, add incremental funding, other administrative action, etc.

Does anyone have a better explanation of the difference? 

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deleted. Pushed the button by mistake.

Are you referring to an amendment to a solicitation?

Are you referring to a modification to a contract?

Or something else? 

Edited by joel hoffman
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15 hours ago, Contracts98754 said:

Does anyone have a good way to explain the difference between amend and modification? 

The terminology is traditional and quite old.

You amend (change the content of) solicitations. See the definition of solicitation in FAR 2.101. See also FAR 14.208 and 15.206. A change to a solicitation is a solicitation amendment.

You modify (change the content of) contracts. See the definition of contract in FAR 2.101. See also FAR Part 43. A change to a contract is a contract modification.

If you go back far enough you can find references in court decisions to contract "amendments." But at some point in history that term was abandoned and a distinction was made between amendments of solicitations and modifications of contracts.

 

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  • 2 weeks later...

As a practical matter, to illustrate how it looks like in real life, consider the SF30.

Item 11 (I usually call these "blocks" in order to not confuse anyone with "line item (as in section B)" in a fast-paced conversation) is used for amendments and Item 13 is used for modifications.

Also see Items 9 and 10.

Item 14 is used to describe the amendment or modification.

Yes, amendments are changes to a solicitation and modifications are changes to a contract.

I suspect that Item 13 says "CONTRACT/ORDER" because in FAR part 2 Contract means, in part:

Quote

orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance;

So technically when a contract is not yet formed (no written acceptance or start of performance did not occur) in the case of a response to an RFQ the government may modify the "order that is not a 'contract' yet". I don't know if this happened to me before, it probably did, such as when there was a typo in the SOW and I had to modify the order before the contractor accepted the order.

If there is no distinction between contract and order in terms of if Item 13's "CONTRACT/ORDER" means contracts or "orders that are already contracts" then saying "CONTRACT/ORDER" does not make sense, in that case it should only say "CONTRACT", since orders are contracts after they are accepted or performance starts.

While I'm ranting, I might as well describe what I think about the term "Call Order" under agency awarded BPAs formed under GSA procedures as in FAR 8.405-3. I know we call the Tasks Orders awarded off of those type of BPAs "Call Orders" instead of "Task Orders" but they are really Task Orders, or they don't have names, so might as well call them Task Orders, because you issue Task Orders to GSA holders, you have a BPA so that you can issue Task Orders off of the BPA... Don't worry, a BPA won't magically turn into an IDIQ just because you call it a Task Order instead of a Call Order.

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@Sam101

In re your comments on SF 30:

20 hours ago, Sam101 said:

I suspect that Item 13 says "CONTRACT/ORDER" because in FAR part 2 Contract means, in part:

Quote

orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance;

The slash between CONTRACT and ORDER in Item 10A stands for "or." Look it up. See Webster's New World Punctuation (2006) or The Best Punctuation Book, period, by Casagrande (2014) and see paragraph (e) of the instructions on the back of the form.

Thus, in Item 10A, read CONTRACT/ORDER as CONTRACT or ORDER. That being the case, your "rant" in that regard is silly. While orders are contracts according the definition of contract in FAR 2.101, many persons in our business do not understand that, and saying CONTRACT/ORDER on the form is designed to make it clear to such persons that SF 30 is used for modifications of both.

Next:

20 hours ago, Sam101 said:

So technically when a contract is not yet formed (no written acceptance or start of performance did not occur) in the case of a response to an RFQ the government may modify the "order that is not a 'contract' yet".

Emphases added.

What are you talking about?  Modify what order that is not a contract yet?

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22 hours ago, Vern Edwards said:

What are you talking about?  Modify what order that is not a contract yet?

I'm talking about a situation where an OF347 is issued in response to an RFQ and then the contractor says that they won't accept the award because I forgot to add some part of their technical quote to the award's SOW.

So now I must issue a modification to add some language to the SOW... but a modification to what? Surely not a contract, because a contract was not formed since the contractor did not accept the award or start performance yet.

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10 hours ago, Vern Edwards said:

Your purchase order (OF347) was an offer to buy. They rejected your offer. So cancel it, and make a new one on a new OF347.

This makes sense in a perfect world without the constraints of a contract writing system.

I usually process the award in the system and then send it out for contractor acceptance, meaning funds are obligated, and if I cancel it the funds in the system will go back to the program office account and a new requisition will need to be made before I can generate a new OF347... Perhaps I should not process the award in the system (and obligate the funds as a result) until I get acceptance, but if it's September 30th that's not good.

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11 hours ago, Sam101 said:

I'm talking about a situation where an OF347 is issued in response to an RFQ and then the contractor says that they won't accept the award because I forgot to add some part of their technical quote to the award's SOW.

So now I must issue a modification to add some language to the SOW... but a modification to what? Surely not a contract, because a contract was not formed since the contractor did not accept the award or start performance yet.

Oh brother!!!

 

11 hours ago, Vern Edwards said:

Your purchase order (OF347) was an offer to buy. They rejected your offer. So cancel it, and make a new one on a new OF347.

 

58 minutes ago, Sam101 said:

This makes sense in a perfect world without the constraints of a contract writing system.

I usually process the award in the system and then send it out for contractor acceptance, meaning funds are obligated, and if I cancel it the funds in the system will go back to the program office account and a new requisition will need to be made before I can generate a new OF347... Perhaps I should not process the award in the system (and obligate the funds as a result) until I get acceptance, but if it's September 30th that's not good.

FAR 13.004 Legal effect of quotations.

“(a) A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract. Therefore, issuance by the Government of an order in response to a supplier’s quotation does not establish a contract. The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.

(b) When appropriate, the contracting officer may ask the supplier to indicate acceptance of an order by notification to the Government, preferably in writing, as defined at  2.101. In other circumstances, the supplier mayindicate acceptance by furnishing the supplies or services ordered or by proceeding with the work to the point where substantial performance has occurred.

(c) If the Government issues an order resulting from a quotation, the Government may (by written notice to the supplier, at any time before acceptance occurs) withdraw, amend, or cancel its offer. (See  13.302-4 for procedures on termination or cancellation of purchase orders.)”

A quote isn’t an offer and an offer isn’t a contract until formally accepted or else accepted by performance.

Unless there is more coverage concerning procedures for responding to Quotations, the FAR is lacking coverage of making offers that differ from the quotation, how to negotiate if the quoter makes a counter offer or simply won’t accept your offer, how to ensure funds are available and obligating them if the quoter simply performs the order without notifying acceptance, etc.

Maybe I missed it.

Of course, while trying to encourage adoption of commercial practices to the extent legal and practical, the FAR is weak on routine negotiating like most commercial buyers would do in the ordinary course of business. 

My impression is that many government acquisition personnel are loathe or reluctant or fairly ignorant how to negotiate or bargain.

Perhaps the recent proliferation of “no haggle” car pricing reflects the trend of reluctance to bargain or reluctance to actually orally converse by today’s general US population…? 

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To compound the confusion, if one googles quotes and Requests for Quotations, the commercial coverage also includes “bids” and other language and practices that differ from the FAR discussion of RFQ’s.

By the way, in commercial practices, an RFQ can also be a “request for qualifications”. It’s common in the Design-Build industry.

Shay Assad is right on when he indicates that the government and taxpayers are paying too much and are often being fleeced.

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13 hours ago, Sam101 said:

I'm talking about a situation where an OF347 is issued in response to an RFQ and then the contractor says that they won't accept the award because I forgot to add some part of their technical quote to the award's SOW.

So now I must issue a modification to add some language to the SOW... but a modification to what? Surely not a contract, because a contract was not formed since the contractor did not accept the award or start performance yet.

Sam, so the “system” doesn’t allow any edits to a Scope of Work SOW, which is an attachment to an OF347?

Did you finalize the Purchase Order so that it can’t be modified or simply edited? Other than the attachment what is necessary to edit on the OF347?


 


 

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4 hours ago, Sam101 said:

I usually process the award in the system and then send it out for contractor acceptance, meaning funds are obligated,

Isn't the actual problem here that an OF347 has no block for vendor countersignature, rather than "the contract writing system" per se? (which only enforces existing business rules). 

Have you considered using a SF1449 or sending the vendor an unsigned OF347 for concurrence prior to signature if it's non-commercial*?  The "OF" is there for a reason after all (it's also a terrible, archaic document).   I'm shocked the vendor knew they had a right to repudiate an order, so I guess somebody out there is paying attention after all.

(* I would refer you to the "FAR doesn't say you can't  use a 1449 for non-commercial" principle here if you're feeling especially bold.)

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8 hours ago, joel hoffman said:

Other than the attachment what is necessary to edit on the OF347?

Well, in the case of only the SOW needing to be changed, nothing. Unless the SOW is pasted the middle of the clauses, like section C would have a "custom clause" titled C-1 SOW and then the contents of the SOW are under that (I don't recommend this, as it's way easier to have the SOW be an attachment, for many reasons).

But what if I made a typo in section B where in one of the CLINs I put the wrong period of performance? Then I would definitely need to modify the "offer to buy" somehow.

6 hours ago, REA'n Maker said:

Isn't the actual problem here that an OF347 has no block for vendor countersignature, rather than "the contract writing system" per se?

Yes, the OF347 not having a block for the vendor countersignature is what is causing me to obligate funds without knowing if the contractor will even accept the order.

6 hours ago, REA'n Maker said:

Have you considered using a SF1449

Not all contract writing systems support the SF1449... I have no idea why that is... Would you use an SF1449 for a GSA FAR 8.4 buy? Or only for open market and FAR 16.5 buys? 

6 hours ago, REA'n Maker said:

or sending the vendor an unsigned OF347 for concurrence prior to signature if it's non-commercial*?

I guess I can do this even if it is commercial... but not on September 30th.

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1 hour ago, Sam101 said:

obligate funds without knowing if the contractor will even accept the order.

Isn't this necessary though? Because even if the contractor does not provide written acceptance they can still begin performing, right? So how can they begin performing if there are no funds obligated?

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2 hours ago, Sam101 said:

Yes, the OF347 not having a block for the vendor countersignature is what is causing me to obligate funds without knowing if the contractor will even accept the order.

41 minutes ago, Sam101 said:

Because even if the contractor does not provide written acceptance they can still begin performing, right? So how can they begin performing if there are no funds obligated?

@Sam101

Sigh.

See Principles of Federal Appropriations Law (GAO Read Book), Vol. II, Ch. 7, Obligation of Appropriations, pp. 7-12 to 7-13:

Quote

A mere request for additional supplies under a purchase order with no indication of acceptance of the request does not create a recordable obligation. 39 Comp. Gen. 829 (1960). Similarly, a work order or purchase order may be recorded as an obligation only where it constitutes a binding agreement for specific work or services. 34 Comp. Gen. 459 (1955)..

Now, I know that quote will prompt some questions. That's why I posted it. But don't ask them. If you do, I won't answer them.

Get off Wifcon and, for answers, hit the books.

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52 minutes ago, Vern Edwards said:

recorded as an obligation

To me recording an obligation means obligating funds in a computer... so if you issue a purchase order for nonseverable services or an item of supply on September 30th 2023 but the contractor does not accept the offer until October 5th 2023, I would imagine that the government is required to obtain FY23 funds to obligate to this now formed contract, unless the funds were already obligated in anticipation of acceptance. At the end of the day, either way counts as an obligation being properly recorded.

As for severable services, the government will need to obligate FY24 funds... if FY23 funds were obligated on September 30th along with issuing the OF347 prior to acceptance then those will need to be deobligated since performance did not start before October 1st.

If this is wrong then it's messed up and they need to re-write the red book to make this true.

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11 hours ago, Sam101 said:

If this is wrong then it's messed up and they need to re-write the red book to make this true.

I know this is Beginners but I but as I I have followed this thread I do have to say that your confusion exists because in some cases the "computer" has not been designed with regard to the "Red Book".   Your confusion is not necessarily your fault it is the fault of others (fiscal) who designed systems to meet their needs.

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12 hours ago, Sam101 said:

To me recording an obligation means obligating funds in a computer...

@Sam101 Who, besides you, cares what it means to you?

See 31 USC § 1501, Documentary evidence requirement for Government obligations

(a) An amount shall be recorded as an obligation of the United States Government only when supported by documentary evidence of—
(1) a binding agreement between an agency and another person (including an agency) that is—
(A) in writing, in a way and form, and for a purpose authorized by law; and
(B) executed before the end of the period of availability for obligation of the appropriation or fund used for specific goods to be delivered, real property to be bought or leased, or work or service to be provided;
(2) a loan agreement showing the amount and terms of repayment;
(3) an order required by law to be placed with an agency;
(4) an order issued under a law authorizing purchases without advertising—
(A) when necessary because of a public exigency;
(B) for perishable subsistence supplies; or
(C) within specific monetary limits;
(5) a grant or subsidy payable—
(A) from appropriations made for payment of, or contributions to, amounts required to be paid in specific amounts fixed by law or under formulas prescribed by law;
(B) under an agreement authorized by law; or
(C) under plans approved consistent with and authorized by law;
(6) a liability that may result from pending litigation;
(7) employment or services of persons or expenses of travel under law;
(8) services provided by public utilities; or
(9) other legal liability of the Government against an available appropriation or fund.
(b) A statement of obligations provided to Congress or a committee of Congress by an agency shall include only those amounts that are obligations consistent with subsection (a) of this section.
Now go do some reading.
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This is modern contracting - click 'approve' in the system of record, sign the contract (not in the contract writing system however because for whatever reason no one has cracked the nut of tying a legal signature to a system of record approval) and keep your fingers crossed that there is no financial interface failure.  My favorite is 'financial interface failure' on admin mods (don't ask me how because I don't know and apparently the system people don't either).  I've had to hold stuff for days until it got unstuck.

Honestly the current approach is no better than the old days of holding the award for execution until you got the hardcopy Financial Accounting Data sheet confirming funds availability.  At least you knew before you signed that the decks were clear.  Now ya' just clicks yer' button and ya' takes yer' chances that the IT gods are smiling on ya'.

It is a travesty how 1102's are now supposed to be IT experts even though you'll be lucky to find a single shred of current guidance on a contract writing system and basic SOPs like the double-approval crap (my agency somehow neglected to provide any guidance on mods.  Modifications are typically 75% of a typical contracting office's transactional workload, so no biggie, right?).

Thats why we make the big bucks I suppose. 😁

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5 hours ago, REA'n Maker said:

It is a travesty how 1102's are now supposed to be IT experts even though you'll be lucky to find a single shred of current guidance on a contract writing system and basic SOPs like the double-approval crap (my agency somehow neglected to provide any guidance on mods.  Modifications are typically 75% of a typical contracting office's transactional workload, so no biggie, right?).

I hear you.  But actually much of the crazy stuff we deal with are brought on by ourselves.  The original basic contract writing systems were pretty straightforward.  Earlier government implementers just didn’t want to accept them in their original form because to do so meant existing paper based work processes didn’t lend themselves to it.  The writing systems were modified to accommodate often old, out of date, paper processes.  You know the old saying “pave over cow paths?”

All the old DoD people remember PD2 and the problems.  The original system was really simple and basic.  It was based upon a system used in the commercial sector.  The DoD source selection group picked it over competitors because it was proven and easy to understand.  Then came implementation across all the DoD organizations.  Nobody wanted to change their internal processes.  So one accommodation after another was made so the automated system mimicked the existing paper processes.  Each user organization fought to protect their status quo processes.  After years of modifications to make everyone happy, it was so convoluted it didn’t work.

Then you take contract writing systems that need interfaced/integrated with finance systems.  Both contracting and finance people didn’t want their pieces changed.  After extensive bickering, we have systems that don’t work smoothly and aren’t well documented from a user perspective.

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While the answer to the OP may depend on the context, if that context is the FAR, then consider the following.  According to the FAR Drafting Guide (Version 5, April 30, 2011), at 33:

Quote

Solicitation amendment/ contract modification.  Use--

(a) "Amendment" to refer to a change made to a solicitation before contract award (FAR 14.208 and 15.206).

(b) "Contract modification" to refer to a written change to the terms of a contract.

(emphasis in original).

EDIT:  In what seems to be a departure from this guidance, FAR 16.603-3(c) states, "Letter contracts shall not...[b]e amended to satisfy a new requirement unless the requirement is inseparable from the existing letter contract."  FAR 18.127 likewise does not seem to follow convention.

EDIT:  I wouldn't read too much into this drafting convention.  For instance, requirements can be "amended or revised" (FAR 9.204 & 11.201), and subcontracting plans (FAR 19.705-2) & shipping instructions can be "amended" post-award (FAR 42.302).

EDIT:  For non-FAR instruments, this might not be the rule.  For instance FAR 3.801(5) seems to suggest (to me) that a grant, loan, or cooperative agreement might be amended.

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