Contracting Officer Signature after Period of Performance Start Date

2FARGone said:

Does anyone know if there is a specific regulation, law, case law, etc. that expressly prohibit a Contracting Officer signing a contract modification (or award) after the established period of performance start date?

To the best of my knowledge, there is no such prohibition.  In my experience, it is not an uncommon practice.  I have a memory of one contract where a modification was executed more than a year after the effective date of the mod.

2FARGone said:

Is there any substantial consequence from this happening?

If certified cost or pricing data is required of the contractor, a question may arise as to what is the "as of" date for certification.  Also, if the cost principles apply to the contract, there can be an issue as to which version of the cost principles apply.  For example, concerning the contract mentioned above, there was a significant change in the cost principles between the effective date of the mod and the date the mod was executed.

@Retreadfed - thank you for the quick response. That is what I am finding and I see that agencies have not taken it upon themselves to expressly state that COs are required to do so in their respective supplements/procedures. I would prefer to not have that written into my agency’s procedures.

2FARGone said:

Does anyone know

I would hope that the discussion with your auditors and thoughts to a policy considers FAR  43.101 and the definition of "Effective Date".

Additionally I suggest reading general references regarding "backdating" which includes references to "effective date" versus "signature" date.  I would suggest that in FAR related contracting it could be reasonable, based on fact, that signature might occur after "effective" date with regard to a contract itself.

I do find the raising of the matter interesting with regard to use of "systems" for the solicitation/contract process.   While one consequence of backdating may enter into the world of funding matters have not systems  been created to insure proper fund management related to obligation of contracts and modifications?   If the push of a button by the proper contracting official today  legitimately "obligates" the money in the system but the CO signs on a piece of paper (mod or contract award form) a week later I would pose the question is there really an issue?  Again it would seem "effective date" is the real issue.

@C Culham - thank you for the additional insight. The “effective date” point is a great one to make.

@2FARGone  Some people may agree with your auditors position depending upon the nature of the contract modification.  For example, a contracting officer may direct an action verbally, through email, by letter, or some other means.  The contracting officer then issues a modification confirming that and references that in the text of the modification body using that in the effective date block.  

Some agencies also generally complete the effective date block on the SF30 with an actual date as a required field.  If it’s earlier than the signature date they include that.  If it’s not they may state “see block 16c below.”  The instructions for completing the SF 30 also includes this wording which they say supports their view: 

Quote

Item 3 (Effective date)

(1) For a solicitation amendment, change order, or administrative change, the effective date shall be the issue date of the amendment, change order, or administrative change.

(2) For a supplemental agreement, the effective date shall be the date agreed to by the contracting parties.

(3) For a modification issued as an initial or confirming notice of termination for the convenience of the Government, the effective date and the modification number of the confirming notice shall be the same as the effective date and modification number of the initial notice.

(4)   For a modification converting a termination for default to a termination for the convenience of the Government, the effective date shall be the same as the effective date of the termination for default.

(5) For a modification confirming the contacting officer’s determination of the amount due in settlement of a contract termination, the effective date shall be the same as the effective date of the initial decision.

On 10/9/2023 at 12:53 PM, 2FARGone said:

Hello, WIFCON Community!

Does anyone know if there is a specific regulation, law, case law, etc. that expressly prohibit a Contracting Officer signing a contract modification (or award) after the established period of performance start date? Is there any substantial consequence from this happening? From my research of the FAR and other agency supplements (as well as this website) I could not find any language that prohibits such an action or delves into the consequences, but Contracting Officers follow the inherent logic that they sign a contract action before or on the day of a performance start.

We are receiving pushback from audit personnel because a Contracting Officer signed a modification after the period of performance started; they believe we should update our internal procedures to state that "Contracting Officers shall sign contract actions prior to their period of performance start," but I think that is unnecessary/overkill. I have not seen any other agency supplement that specifically states something to that effect (and the term "period of performance" itself is not a defined term in the FAR, etc.).

Thank you!

43.201 (c) The contracting officer may issue a change order by electronic means without a  SF 30 under unusual or urgent circumstances, provided that the message contains substantially the information required by the  SF 30 and immediate action is taken to issue the  SF 30.

That is from the FAR based policy for change orders, applicable prior to issuing the SF30.

Edit: See also 43.105 Availability of funds (availability of funds certification required based upon at least a Rough Order of Magnitude ROM estimate) as well as DFARS or other agency coverage of change orders (e.g., Not To Exceed NTE amount stated), as applicable, for unpriced changes.

I will add that the word “immediately” is often a bit Utopian (an impossible ideal) in practice.  But it effectively requires issuing the SF 30 without delay,  if issued after directing a change - not days, weeks or months  later… 

And the Changes Clauses recognize that an oral order is also to be treated as a change order, though not the preferred method. Agency policies often stress written orders as the norm. How difficult is it these days to text or use other electronic means to issue a change order?

joel hoffman said:

I will add that the word “immediately” is often a bit Utopian

Several years ago, DoD attempted to define commonly used but vague terms.  In the draft of the guidance, DoD defined immediately as within the next 180 days.  The guidance was never issued.

Retreadfed said:

Several years ago, DoD attempted to define commonly used but vague terms.  In the draft of the guidance, DoD defined immediately as within the next 180 days.  The guidance was never issued.

Sheesh!