Postaward Scenario

A few questions came to mind:

Is the contract explicit that the Contractor can only “repair” the widget? Does the contract define “repair,” such as what percentage of the product could be repaired?

Is this a supplies requirement? If so, unless the contract was very specific about the definition of “repair,” FAR Clause 52.211-5, Material Requirements, would make new equipment that met the specifications allowable.

If the contract is for only “repair” only, is there a technical reason why replacements were exempted?

What type of Fixed Price contract is it? The contractor’s proposed plan would likely be a greater financial risk to the agency in a Fixed-Price Incentive (firm target) contract than on a Firm-Fixed-Price contract.

Is this a construction contract with FAR Clause 52.243-4, Changes, or 52.243-5, Changes or Changed Conditions?

Is FAR Clause 52.211-16, Variation in Quantity, in the contract?

Per FAR Clause 52.249-8, Default (Fixed-Price Supply and Service), was there an excusable delay that prevented the contractor from performing timely?

1. The contract does not define "repair".

2. The contract contains clauses prescribed for use in contracts for services--not supplies. No FAR 52.211-5 or FAR 52.211-16.

3. Contract is just for repair, not repair/replace. The Government gives the widgets to the contractor, the contractor repairs them and gives them back.

4. You can assume FFP.

5. No construction contract clauses.

6. No excusable delay.

Does the contract contain the clause at FAR 52.245-1, Government Property, with its definition of Government-furnished property that includes "property furnished for repair, maintenance, overhaul, or modification"? If so, the Contractor and Government could agree for the Government to abandon the non-sensitive property in place under para. ( k )( 2 ) of the clause.

Are you asking a serious question because you need some insights from others? Or are you playing a guessing game?

Yes, the contract contains FAR 52.245-1.

So you would abandon the four Government-furnished widgets? How would you go about meeting the need for the four remaining widgets?

This is an academic exercise. There's no right answer. Only you know what you would do.

I would question why we were not buying new widgets and tossing out the old ones if the OEM will provide new ones for the same price.

To Boof...just because the contractor (OEM) offered the replacement in this instance AFTER attempting to fix (or at least inspecting) the widget AND having been paid to repair 19, doesn't mean the same price would be offered in a bid to purchase new.

I would say the government should check to make sure the OEM didn't discover some flaw that may compromise other in-service widgets, but should otherwise take the contractor up on their offer. For all the information we have, it is in the best interest of the government and I at least hope that common sense would prevail rendering repair-by-replacement as acceptable. We would accept this in our personal consumer items, why not the government. Okay, I tend to oversimplify things, but "get 'er done!"

Don - As you mentioned, there was no definition of repair in the contract. Absent any specifications or other performance criteria for repair, the term repair can be rather ambiguous. Therefore, the Contractor's solution could be a reasonable method to repair defects in the widgets provided there is no difference in form and function between the widgets.

Regardless if the acquisition was competitive or sole source, the contractor's "new" method of performance would be within the scope of the contract. No modification to the contract would be necessary.

My answer would be different if the contract was specific to the method of repair or replacement. If the contractor failed to adhere to those terms and conditions, and no excusable delay exists, it would be in default of the contract. Typically "new" widget are of higher value than used widgets (though if these were non-commercial boots, I'd have a problem!). I'd accept the new widgets as consideration for the contractor's anticipatory default in a supplemental agreement to the contract per FAR Clause 52.246-4, Inspection of ServicesFixed-Price. See (f) of that clause. If the value to the agency of the new goods was less, I'd make a deduction.

Many will likely disagree with this approach, but the contractor should not have agreed to perform the contract if it could not deliver.

onoudidnt14,

How would you go about taking the contractor up on their offer? Modify the contract? Issue a new contract?

metteec,

What about clauses that specifically apply to the purchase of supplies (e.g., Buy American Act, Trade Agreements Act, etc.)? Would you incorporate them into your modification? Or, you don't think they would apply?

How are the CLIN(s) on the TO structured, Repair widgets, 19 each?

I imagine the terms of the required turnaround were as wispy as the definition of "repair" is in this case?

If the function of the new items is identical and otherwise indistinguishable from repaired items (perhaps a little shinier case), and the only purpose of the replacement is under an effort to provide identical functionality as a repaired widget (preventing it from ballooning into an IDIQ where you could just order new widgets), I'd argue the Government gets fair value out of the repairs, that CICA doesn't make us fall on our own swords because the replacement satisfies the intent of the repairs and is within the scope of the repair contract (even if repair via replacement isn't specifically described), and that the outcome doesn't constitute purchase of supplies any more than repair service (which would reasonably include - albeit my assumption - replacement of worn components) would constitute the purchase of components.

I feel like there's an ugly, gelatinous monster waiting to be uncovered in this question in the form of someone raising a creative question.

Don - I don't consider this a supplies acquisition; as we agreed to before, this is a contract for services. No supplies-related clauses are necessary.

However, in the case where we would accept the contractor's non-conforming services, taking Buy American and TAA under consideration would be prudent in determining the downward adjustment in the contractor's price (or whether to even accept the contractor's "new" method of repair).

For example, in one IT widget case, the contractor provided Chinese knock-off widgets in place of our brand name items. They looked the same, smelled the same, tasted the same, appeared to function the same, but the firmware was bootlegged and could have contained security vulnerabilities. In this case, we terminated the contract rather than accept non-conforming items.

That is why it is important to determine what differences there are between the new and old items aside from age.

Part 1 – Work with the contractor to Terminate the TO on a no cost settlement basis, get the widgets back all the while attempting to find a new contractor to repair and if you can’t issue a new procurement to the contractor that you Terminated for the purchase of the widgets.

Part 2 – Same as Part 1.

According to the contractor, they will not be able to repair the remaining four widgets by the delivery date. However, they have offered to provide new widgets instead, for the same price the Government would have paid for the repairs.

I will assume (1) that there is no reason to suspect criminality and (2) that there is no opposition from the requiring activity to accepting the new widgets as substitutes for repair of the old.

The contractor has put the CO on notice that it will be unable to complete the work on time and has offered a substitute performance to discharge its obligation and avoid default. The contracting officer's authority to make such settlements is very broad. I would unhesitatingly accept the contractor's proposal, with one proviso -- that it also return the four widgets that it cannot repair on time. I would also agree that the contractor's performance rating will not suffer.

The parties must modify the contract to document their "accord." The mod would have no dollar value. Upon delivery of the new widgets, there would be "satisfaction." Thus, the agreement would be an example of an "accord and satisfaction." See Cibinic, Nash, and Nagle, Administration of Government Contracts 4th 1210 - 1212. See also Restatement (Second) of Contracts § 281 (1981):

(1) An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty. Performance of the accord discharges the original duty.

(2) Until performance of the accord, the original duty is suspended unless there is such a breach of the accord by the obligor as discharges the new duty of the obligee to accept the performance in satisfaction. If there is such a breach, the obligee may enforce either the original duty or any duty under the accord.

This would not be a new acquisition. It makes no difference whether the contract was sole source or awarded competitively. There are no CICA issues, no scope issues, no pricing issues, no Buy American issues, and no government property issues if the contractor returns the old widgets. This would be a very good deal for the government and the kind of common sense deal that I would expect a knowledgable and competent CO to make with no fuss and no muss and without spending three weeks in legal review.

Part 1 – Work with the contractor to Terminate the TO on a no cost settlement basis, get the widgets back all the while attempting to find a new contractor to repair and if you can’t issue a new procurement to the contractor that you Terminated for the purchase of the widgets.

Part 2 – Same as Part 1.

I would find a way to accept the new widgets in lieu of late repair of the old ones , assuming that you have determined that they will be equivalent in function and value to the original widgets and assuming that you still need the widgets, without spending more of the borrowed taxpayers' money. It looks like a win-win situation to me.

Joel – My response is based on the fact that the original post notes a “requirements” contract.

Work under such a contract is ordered through an issuance of a task order or at least I hope so but Don can clarify if there is a TO. The supply becomes new work to the task order (so what is it now a TO or a DO?). Therefore my reasoning of termination and issue a new order but will admit I forgot that the parent contract would have to be modified to do so by changing the “requirements ” from not only a service to a supply. I do not disagree with folks in trying find the win-win but again noting this “contract” is a “requirements” contract no one has addressed the matter of adding new work to the TO which is usually considered not appropriate. All in all the supply of the widgets should be at the minimum a new TO (really a DO) but only after modifying the parent contract to include both services and supplies.

So in the end avoid all the confusion as demonstrated by my first post.

The supply becomes new work to the task order (so what is it now a TO or a DO?). Therefore my reasoning of termination and issue a new order but will admit I forgot that the parent contract would have to be modified to do so by changing the “requirements ” from not only a service to a supply. I do not disagree with folks in trying find the win-win but again noting this “contract” is a “requirements” contract no one has addressed the matter of adding new work to the TO which is usually considered not appropriate. All in all the supply of the widgets should be at the minimum a new TO (really a DO) but only after modifying the parent contract to include both services and supplies.

I disagree with every element of that analysis. The contractor is offering a solution to a performance problem -- a substitute performance, an accord and satisfaction. The proposed solution is not new work and does not convert a service contract to a supply contract or a task order to a delivery order.

Forgive me for saying it, but that is disordered bureaucratic thinking that is not consistent with the intent of the statutes, the regulations, or the common law of contracts. It turns a simple solution into a needlessly complicated problem.

Carl,

You're correct, the repair work was issued under a task order.

From my view, my proposed soluction is good contract management etiquette. .

I agree every one's ideas on the fix could be done but what interests me most is that one reference makes a solution not consistent with statutes, regulations, common law of contracts verified only one citation..

Additionally comparing my solution to that of Vern Edwards a big "if" lies within the solution offered by Edwards with regard to getting the widgets back. Mine has no such "if", plain and simple the termination would get the widgets back.

Don can continue to update the whole situation to fit any of the solutions including the "if" being a "yes" the contractor has agreed to return the widgets when providing the new ones. Or, he could update and say - Nope the contractor wants to keep the old ones and then in my view the accord falls apart. The only place where my fix falls apart is if the contractor does not want to do a no cost settlement but I am still going to terminate (please note that I have not cornered myself by stating either T4D or T4C as further facts would dictate which route).

I will stop here and only offer that any fix would work but I would suggest consideration must be given to a bunch of other facts that have not been asked for such as .... commerical Item contract or non-commercial, Small Business Set-Aside or not (nonmanufacturing rule), 8(a) contract (Part 2), value of the widget repair service/new one, value of the contract in total, cost or pricing data required for the mod, etc.

The contractor would have little real choice about returning the widgets. If he refused, then I would direct him to perform as required. If he could do that, then I would be happy, but he has already said that he cannot do that. If I refused his offer of new widgets as substitute performance unless he also returned the widgets, which are government property, and if he insisted on keeping them, then he would end up in default, at which point he would still have to return the widgets and then be at the government's mercy. He would not get paid, would be on the hook for damages, and be facing a poor past performance rating. Why would he refuse? He wouldn't.

None of your other considerations, such as commercial versus noncommercial, small business set-aside, etc,. are pertinent. What I cannot seem to make you understand, Carl, is that by accepting the new widgets as substitute performance you would not be conducting a new procurement and making a new obligation of funds, but resolving an issue of prospective nonperformance in a current one without obligating another nickel.

Oh, well. I'm sure that there are many out there who get it and many who don't. The ones who don't seem to be looking for all kinds of reasons to make contracting harder than it needs to be.

That's not how I learned how to do contracting, but to each his own.

The scenario is based on a true story. In the story, the program office was the first to receive the offer of the new widgets from the contractor. Thinking this was a good solution, one of the program folks informed the contracting officer and asked if it could be done. Backed by legal counsel, the contracting officer refused--saying that such a change would be outside the scope of the contract. She didn't offer an alternative, either.

Unfortunately, I find this story much more believable than if the contracting officer had accepted the contractor's offer and found a way to make it work contractually.

That's why some program offices hold some COs in such low esteem. Accepting the proposed substitute performance should have been a no-brainer.

Unlike the CO of record I did offer an alternative. Guess I get some points for that!

As to Vern's comments that specifically reference me I would offer only that I am very confused. Vern is the first to offer that posts on this forum that "dribble" out information are frustrating. He will lecture, criticize and almost to a point berate people that do and will do the same to those that attempt to offer advice at any point in a discussion that does dribble out the facts. The most recent example is found here /threads/2773-lack-of-far-clauses-in-federal-procurements Likewise he will lecture those that post solutions without adequate reference.

Yet in this specific discussion he has, like me at least, offered an opinion absent all the facts and from my view few if any references (I am reminded that the size standard for a supply is different than a service and a contractor qualifying as a small as service might in fact be large for a supply - Ref. FAR Part 19). Hmmm I am reserved to think that the learning lesson with regard to this “fun scenario” is in fact - practice what you preach.

Carl:

Here is the scenario that Don posted initially:

The Government has a fixed-price requirements contract for the repair of noncommercial widgets for a base year and four option years. The contracting officer issues a task order for the repair of 19 widgets. The contractor repairs and returns 15 of the 19 widgets. According to the contractor, they will not be able to repair the remaining four widgets by the delivery date. However, they have offered to provide new widgets instead, for the same price the Government would have paid for the repairs.

In Post #13 I offered what I thought was a rather complete description of what I would do and legal rationale for doing it. What I proposed was to accept the new widgets in lieu of contractor default of the repair service required. What you proposed was:

Terminate the [task order] on a no cost settlement basis, get the widgets back all the while attempting to find a new contractor to repair and if you can’t issue a new procurement to the contractor that you Terminated for the purchase of the widgets.

​

You did not explain why you would go for a no cost settlement. You then explained to Joel that:

[T]he original post notes a “requirements” contract.

Work under such a contract is ordered through an issuance of a task order or at least I hope so but Don can clarify if there is a TO. The supply becomes new work to the task order (so what is it now a TO or a DO?). Therefore my reasoning of termination and issue a new order but will admit I forgot that the parent contract would have to be modified to do so by changing the “requirements ” from not only a service to a supply. I do not disagree with folks in trying find the win-win but again noting this “contract” is a “requirements” contract no one has addressed the matter of adding new work to the TO which is usually considered not appropriate. All in all the supply of the widgets should be at the minimum a new TO (really a DO) but only after modifying the parent contract to include both services and supplies.

What the... ?????

I then explained that my acceptance of the new widgets would not constitute a new acquisition, because it would not involve a new obligation of funds. See the definition of acquisition in FAR 2.101. So I was not concerned with CICA, small business, etc.

Now you say:

n this specific discussion [Vern] has, like me at least, offered an opinion absent all the facts and from my view few if any references (I am reminded that the size standard for a supply is different than a service and a contractor qualifying as a small as service might in fact be large for a supply - Ref. FAR Part 19). Hmmm I am reserved to think that the learning lesson with regard to this “fun scenario” is in fact - practice what you preach.

What facts and references do you want from me? I'm not proposing a new acquisition, so what's up with the size standard thing? I'm proposing to avoid a default by accepting a substitute performance. Have you never heard of that? Were the Cibinic & Nash and Restatement of Contracts references not enough? Do you doubt a CO's authority to modify the contract to accept performance other than what was originally required in lieu of T for D? Do you think the CO has no alternative in this matter other than to let the contractor default?

Never mind, Carl. You do it your way, I'll do it mine.

I do not think that either Vern, Carl, or Joel's solutions are unreasonable. Neither solution is the obvious best one, either. It is subjective and depending on particular circumstances.

For example, in Vern's solution, we demanded the old, broken widgets back which the OEM says it is unable to repair. Taking back old, broken and unrepairable (according to the OEM) widgets could potentially be costly to the agency either in storage, shipping, chemical remediation, disposal, etc. The old, broken widgets could have no residual value to the agency. I can just picture the scenario where the boss says, "nice job resolving that contract issue, I'll just leave these four old, dirty, and broken K9 commando pooper-scoopers at your desk."

Then again, there is the old saying, "one person's trash is another's treasure."

Regarding Don's explanation that an agency CO (backed by her legal wizards) claimed acceptance of the new widgets was outside of the scope, I think that there is a near consensus here that it would be a within the scope change to the contract.

Why would he refuse?

Ending up in default might be the lesser of two evils for the contractor if the defective widgets are high value items.

Ending up in default might be the lesser of two evils for the contractor if the defective widgets are high value items.

The monetary loss might not be too bad; it depends on the government's damages. But the past performance rating might be devastating.

For example, in Vern's solution, we demanded the old, broken widgets back which the OEM says it is unable to repair.

Get your facts right. We were not told that the widgets were old, and we were not told that the contractor could not repair them, only that it could not repair them within the delivery schedule.

My solution is better than any that have been posted. It's the simplest and it's the quickest. If you think you have a better one, tell us about it.

Don:

I think I figured out what happened in the real case.

The scenario is based on a true story. In the story, the program office was the first to receive the offer of the new widgets from the contractor. Thinking this was a good solution, one of the program folks informed the contracting officer and asked if it could be done. Backed by legal counsel, the contracting officer refused--saying that such a change would be outside the scope of the contract. She didn't offer an alternative, either.

The CO looked at the thing as a contract change, probably under the Changes clause, and decided that such a change would be out of scope. The lawyer agreed. I can hear them now, trying to figure out what to put into block 13 of SF 30. But that was the wrong approach

The transaction should have been handled as a “settlement agreement,” “alternative to termination for default,” or even as a dispute resolution, citing, preferably, “mutual agreement” or, alternatively, the Default or Disputes clause as authority. It should have been considered what it really was -- not a change, but an agreement to accept a substitute performance instead of having to partially T for D. The CO could have handled it as a final decision on a Government claim.

For an example and brief discussion of accord and satisfaction, see Sikorsky Aircraft Corp. v. United States, 105 Fed. Cl. 657, 674 and 676 (2012):

“A claim is discharged by the doctrine of accord and satisfaction when ‘some performance different from that which was claimed as due is rendered and such substituted performance is accepted by the claimant as full satisfaction of his claim.’ ” O'Connor v. United States, 308 F.3d 1233, 1240 (Fed.Cir.2002) (quoting Case, Inc. v. United States, 88 F.3d 1004, 1011 n. 7 (Fed.Cir.1996)). “In its most common form, an accord and satisfaction exists as ‘a mutual agreement between the parties in which one pays or performs and the other accepts payment or performance in satisfaction of a claim or demand which is a bona fide dispute.’ ” Id. (quoting Nevada Half Moon Mining Co. v. Combined Metals Reduction Co., 176 F.2d 73, 76 (10th Cir.1949)). An effective accord and satisfaction requires four elements: “(1) proper subject matter; (2) competent parties; (3) a meeting of the minds of the parties; and (4) consideration.” Holland v. United States, 621 F.3d 1366, 1382 (Fed.Cir.2010) (quoting O'Connor, 308 F.3d at 1240). See generally Restatement (Second) of Contracts § 281 (1981).

* * *

While “an agent of the [g]overnment may not bind the [g]overnment to an agreement when such an act is directly forbidden by U.S. law or regulations,” Texas Instruments, 922 F.2d at 815 (citing Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947)), “[c]ourts have consistently afforded a wide degree of latitude to contracting officers in their ‘authority to enter into, administer, or terminate contracts,’ ” Thomas Creek Lumber, 36 Fed.Cl. at 238 (quoting NKF Eng'g, Inc. v. United States, 805 F.2d 372, 377 (Fed.Cir.1986)). That authority stems from the government's policy to “try to resolve all contractual issues in controversy by mutual agreement at the contracting officer's level” and to make “[r]easonable efforts ... to resolve controversies prior to the submission of a claim.” FAR § 33.204. Thus, “contracting officers are authorized, within any specific limitations of their warrants, to decide or resolve all claims arising under or relating to a contract.” FAR § 33.210; see also FAR § 1.602–1; FAR § 2.101 (defining “contracting officer”); cf., e.g., Compliance Corp. v. United States, 22 Cl.Ct. 193, 201 (1990) (upholding a contracting officer's decision to disqualify a bidder even though not expressly authorized by any statute or regulation because the action was “inherent in his duty to ‘safeguard[ ] the interests of the United States in its contractual relationships' ” (alteration in original) (quoting NKF Eng'g, 805 F.2d at 377 (in turn quoting FAR § 1.602–2 (1985)))). This wide authority includes the power to enter into an accord and satisfaction related to a CAS-covered contract without making a formal cost-impact determination.

The claim in this case would have been the Government’s demand for timely performance. The consideration would have been the fact that the widgets being given were new and of greater value than the old widgets that could not be timely repaired and that the contractor was giving them in exchange for the price of the repair, which, presumably, would have been less than the purchase price.

If the CO had been able to understand that she wouldn’t be changing the contract -- the description of the work could have remained the same -- but entering into an accord, she would have avoided the scope of the contract issue. But I’ll bet that CO had never heard of such a thing. The lawyer may not have heard of such a thing, either. That lawyer may have known nothing more about contracts than what she learned in first year law school or in some DAU course.

I suspect that Carl, too, may be thinking of the problem as one of a change, which would explain his concerns about small business, supplies versus services, and scope, which I have not been able to understand. If so, then I apologize for not explaining my solution in greater detail at the outset. I assumed that everyone had either heard of it or would investigate if they hadn’t. That's why I provided references.

I could resolve something like this in a day, with a few phone calls, emails, and a two-page, no-cost supplemental agreement.

I know the DOD favors fixed-price contracting. I know the contractor had a choice to accept the contract type with the associated risks. On the other hand, I have been puzzled for a long time as to how a contractor can estimate unknown repair costs with any accuracy. Each repair is unique. Some widgets will arrive neatly packed in boxes and others will arrive haphazardly packed, after having travelled long distances. Sometimes one widget will arrive and other times 15 or 20 will show up and strain capacity. Replacement parts may be tough to obtain (obsolescence). I have never understood how a contractor can accept a fixed price per repair under those circumstances, unless it throws in huge contingencies.

Is it simply a matter of averaging expected repair costs (some easy repairs and some hard repairs)?

Thanks for any insight.

H2H

I had to edit my post. Sorry if I did it while you were reading it.

Help:

It might be like auto repairs. They have a book of standard repair times for various types of problems.

By the way, there would have to be at lease three simple stipulations as part of the deal, in addition to any I have already mentioned:

1. that the new widgets were identical to the old in terms of form, fit, function, and performance;

2. that any warranty applicable to the items in the original acquisition contract would be applicable to the new items; and

3. the new items would be included among the items covered by the repair contract under which the accord was being made.

Get your facts right. We were not told that the widgets were old, and we were not told that the contractor could not repair them, only that it could not repair them within the delivery schedule.

My solution is better than any that have been posted. It's the simplest and it's the quickest. If you think you have a better one, tell us about it.

I agree with you and agree that this is simply a solution to a performance problem, involving accord and satisfaction. As for returning the broken widgets, after I saw Vern's post (he posted while I was typing mine) I started editing mine to explain how that could also be a win-win solution but the possible alternatives could have needlessly over complicated the scenario. If you think about it, the contract involves repairing widgets plus shipping back and forth. As part of the solution, the company could maintain possession until the next order. The government could include said delinquent widgets in the next order. This would save shipping costs for both parties on the next order. It is likely that the company would not have any use for the broken widgets other than to fix and return them. They probably don't sell used widgets otherwise, but who knows. Depends upon the details.

The point is that they would probably return them if directed to but it could be a win-win for both parties just to include them in the next order. Saves time and shipping costs.

Of course, this involves thinking outside the box to save the taxpayers money and to minimize problems for the contractor. After viewing many of the posts, wrapping oneself around the axle to cover oneself under FARs and extra time and effort seems to be the modus operandi in government contracting.

If you think about it, the contract involves repairing widgets plus shipping back and forth. As part of the solution, the company could maintain possession until the next order. The government could include said delinquent widgets in the next order. This would save shipping costs for both parties on the next order. It is likely that the company would not have any use for the broken widgets other than to fix and return them. They probably don't sell used widgets otherwise, but who knows. Depends upon the details.

The point is that they would probably return them if directed to but it could be a win-win for both parties just to include them in the next order. Saves time and shipping costs.

Great suggestion, Joel. I wish I'd thought of it.

Great suggestion, Joel. I wish I'd thought of it.

Vern, you found the breakthrough solution. By talking together, the parties could have come together to add my alternative. Apparently many people in acquisition arena don't like to do that. Witness the actual scenario. I have been a negotiator for many years and was taught and learned to negotiate to "win-win or no deal" whenever Possible.

Of course, this involves thinking outside the box to save the taxpayers money and to minimize problems for the contractor. After viewing many of the posts, wrapping oneself around the axle to cover oneself under FARs and extra time and effort seems to be the modus operandi in government contracting.

Actually, I think it is (or should be) inside the box thinking. We (and I include myself in that "we") have gotten so used to looking at everything through a regulatory lens that the older among us have forgotten things that our teachers taught us about how to get things done under contract. As soon as I saw Don's problem I knew what I would do and was startled by some of the suggestions I was reading. I even teleconned with some of my friends about it and we all agreed about what to do. But I thought sure that Don had laid an ambush, so, coward that I am, I didn't post until after he said, in #5, that there is no right answer.

We old contracting guys -- me, you, Napolik, Navy, former fed retread, and the others -- knew about these kinds of solutions at one time, and still do on a good day. Our sin is not teaching them to the newbies. Of course, it would help them out to read some books.

I'm in total agreement with Vern.

Perfect conclusion by Vern and would add that somehow it should include that quick conclusions about a CO's actions should be tempered.

Again just like many original posts in this forum we only see a small portion of the facts. When Don offered the route taken by the CO I myself thought it was harsh and not a win-win but then I thought I do not even know what the total contract experience with both the Program Office and the Contractor was. It could very well be that the CO finally had enough of a whole bunch of stuff and simply said no more and used "scope" as the out. So the rhetorical question that no one needs to answer is - Have you ever found a way out in similar fashion? I will admit I have and would submit it is inside the box thinking as well.