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Definitely not a suspension of work... Maybe a work order to pull out the non-conforming work and replace it with compliant work (all at no additional cost to the Government), or a notice of non-compliance or a cure notice, but definitely not a suspension of work... A suspension of work order is only issued for the Government's convenience, not for the contractor's unwillingness to perform to contract specifications (especially when the is caught on a site visit).

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To clarify - when I mentioned a contractor initiated change I was referring to a change proposed by the contractor, not by the government. I did not mean to infer that the Contractor can modify the contract requirements unilaterally under a FAR-based construction contract.

Do NOT direct a Suspension of Work due to non-conforming work or non-compliance or use that term. As ji mentioned, the SOW clause is used for the government's convenience and provides for a price adjustment if the period is unreasonable and increases the Contractor's cost.

The DoD guide specification for Contractor Quality Control states that the Government may direct the Contractor to stop all or part of the work when there is a failure of the CQC program, without entitlement to time or cost impacts, in order to fix the system or correct faulty work. But it is not a Suspension of Work. I must cook dinner, so don't have time to research all the FAR clauses applicable to QC/QA/Inspection and Acceptance, etc. I will check later.

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This gets more confusing as you dribble out info. Are you offering a scenario where the KO visits the construction site and sees that the Contractor isn't doing what it said it would or had to do when the parties were negotiating the price? If so, then there are numerous possible scenarios to consider depending upon the circumstances. In addition, the firm is now behind schedule and apparently won't complete the project by the contractually required completion date. It appears that the firm is offering some type of betterment in exchange for a time extension. We don't really know if anything else is involved.

My advice above was based strictly upon the failure to complete the project on time due to inexcusable delays. The Contractor may be technically in breach of the contract's completion terms. I do believe that FAR 49.402-4 offers the Government other options to TFC or perhaps even just assessing L.D's "when in the Government’s interest" and describes SOME of those options. Among the listed possibilities is to allow the firm to continue performance under a revised delivery schedule**. In considering if it is in the Government's interest, I think one could accept some consideration, such as a betterment, assuming 1) that the Government can allow later completion and 2) the Government can otherwise absorb the additional Government's delay costs that should have been factored into the liquidated damage amounts included. I am assuming that LD's are applicable. So, my personal view would be that the consideration ought to be worth at least what the L.D's otherwise due would be.

I have encountered situations where a firm argued during negotiations that its proposed price was based upon a certain technical approach to meet specified conditions, never intending to use that approach. In one case, after award the firm mobilized different equipment and a different approach which was clear that it had intended from the start. We issued a credit change to allow the other, lower priced approach. These situations can be very complicated.

I have encountered situations where we have allowed various options to TFD.

Bottom line is that there are numerous scenarios and numerous things to consider in an negotiated construction contract. This makes a simple answer to your initial question very difficult to provide. You started interjecting bits of information that make generalizations confusing.

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Vern,

1. It's worse than a reach, and you can't stand on it. In Government construction you have forms, clauses, specifications, and drawings. Specifications and drawings describe the construction to be done. See FAR 36.202 and 52.236-21. In my experience, the completion date is on a form or in the clauses, not in the specifications or the drawings. Is that the way it is in your contract? If so, then don't cite the Changes clause.

Would the Statement of Work be considered a specification? We include it in Section C - Descriptions and Specifications in our contracts.

In Melrose Waterproofing, CO., ASBCA 9058, 1964 BCA 4119, the board held that the government could change the special conditions of the contract under the Changes clause becasue such provisions were listed as part of the contract specifications......It therefore appears that the government may be able to greatly broaden the coverage of the Changes clause by arbitrarily calling all contract documents "specifications." (taken from page 391 of Adminstration of Government Contracts.

If the SOW cleary states that the period of performance is X amount of days, can the CO then change the PoP by revising the SOW under the Changes clause?

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Guest Vern Edwards

Statements of work are considered a type of specification. Historically in DOD we called descriptions of hardware "specifications" and descriptions of work "statements of work.". See MIL-HDBK-245D, para. 3.2.

I think you said that your project is construction. In construction, the thing to be constructed is described by drawings and specifications. The drawings are graphic descriptions of the thing, usually annotated. Specification is a term of art that refers to a document that describes materials, products, design requirements, and work standards. In government contracting you usually do not have statements of work in construction projects. You have specifications and drawings. Look at the changes clause for construction, FAR 52.243-4. It uses the term "specifications" and says that it includes drawings.

Apparently, you have a SOW in a construction project. Is that right? If so, then I would say that the SOW is a kind of specification and is covered by the Changes clause. If the SOW includes the period of performance then I think you can issue a change order to change it.

BUT -- If you are still talking about a contractor who is late and has no excuse, and if you want to change the period of performance for consideration, DO NOT cite the Changes clause. At this point in this thread you should understand why not.

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