Is 16.505(b)(2)(i)(B) actually a Mod Authority?

[DeLong]

@Vern Edwards Just read your post on asking questions and I see that I had a few assumptions in this question.   

I was brought up as modification authorities are either a) the clause from your contract that authorized the change; or if there was no clause than the only other option was b) Mutual agreement; as shown in this quote from the "DAU modification authority decision help guide":

"The vast majority of contract changes are effected by the authority of the existing terms and conditions (i.e., clauses) within a contract. When so, that particular clause shall be used as the authority for the change. In the rare event that a change is necessitated by a condition not specifically covered within a contract clause, then common practice is to state as the authority: “Mutual agreement of the contracting parties”. The checkbox in front of Block 13C would be checked, and this phrase would be typed in block 13C."

Further, as a minor point, it was just hammered into me and is now habit to use the part 43 cite when making mutual agreements; although I do agree that the cite is not required.

I see from the conversation that using 41 U.S.C. 4106(c)(2) and FAR 16.505(b)(2)(i)(B) isn't wrong to cite per se, although in DoD I feel that it would be "wrong" in that there would be few reviewers who would sign off on it; at least in the offices I worked. I'm not in those offices anymore though, so need to adjust my thinking. 

Again, super interesting conversation here. Food for my thoughts.  

[Vern Edwards]

15 minutes ago, joel hoffman said:

By definition, a supplemental agreement (Block 13 c of the SF 30) is a bilateral agreement. That is the topic under discussion.

“43.103 Types of contract modifications.

Contract modifications are of the following types:

       (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-

            (1) Make negotiated equitable adjustments resulting from the issuance of a change order;

            (2) Definitize letter contracts; and

            (3) Reflect other agreements of the parties modifying the terms of contracts”.

And your point is?

[joel hoffman]

You don’t have to repeat that the authority for a supplemental agreement is mutual agreement. A supplemental agreement is a bilateral modification that reflects mutual agreement of the parties. 

[Vern Edwards]

31 minutes ago, joel hoffman said:

You don’t have to repeat that the authority for a supplemental agreement is mutual agreement. A supplemental agreement is a bilateral modification that reflects mutual agreement of the parties. 

@joel hoffmanThat being  the case, what authority do you cite for a supplemental agreement to change the contract delivery date for their mutual convenience, not due to any cause? It just works out best for both of them. No price change.

 

[C Culham]

Oh what the heck, I enjoy looking back at WIFCON when topics of new or old arise!

 

[joel hoffman]

55 minutes ago, Vern Edwards said:

@joel hoffmanThat being  the case, what authority do you cite for a supplemental agreement to change the contract delivery date for their mutual convenience, not due to any cause? It just works out best for both of them. No price change.

 

It would be an in-scope, no cost bilateral change.

For a commercial service or item, cite 52.212-4 (c).

Technically, for a non-commercial contract, the Changes clause describes directed changes or constructive changes.  But the Changes clause has traditionally also been applied to bilateral changes that either party can propose and the parties agree on the terms.  For example, see discussion  in “Administration of Government Contracts”, Chapter 4 CHANGES, Section I. PURPOSE AND COVERAGE OF THE CHANGES CLAUSE.

I remember that being mentioned years ago in the Nash and Cibinic Report. It may have been repeated throughout the years. 

Block 14 describes the change in time and would also state that there is no change in the price. Both parties sign the SF 30 mod. 

[Vern Edwards]

11 minutes ago, joel hoffman said:

It would be an in-scope, no cost bilateral change.

😂 Oh please. It would be a supplemental agreement.

FAR 52.212-4(c) isn't authority for anything. It stipulates a condition precedent. They rest of your post is just diversionary.

☺️

[joel hoffman]

Okay, but It is a change to the terms of the contract. 

[Vern Edwards]

5 minutes ago, joel hoffman said:

Okay, but It is a change to the terms of the contract. 

Are you going to answer my question? 😝