Unilateral Change Orders on Service FFP POs w/52.212-4
Started by myfrogleaps · Mar 8, 2016 · 8 replies
- mOriginal post
myfrogleaps
Mar 8, 2016 · 10y ago
Background:
My co-worker and I disagree on a matter and I am looking for clarification to see if I am missing something. I am processing a modification for said co-worker to extend the Period of Performance only. The award was made for services as a FFP PO inclusive of 52.212-4. No other changes clauses were included. My co-worker wants to pursue issuance of a unilateral change order citing FAR 43.202 as the authority.
My inclination is it is not permissible to issue a unilateral change order to the contract as the changes clauses included specifically states “Changes in the terms and conditions of this contract may be made only by written agreement of the parties.” Based on 52.212-4, it seems to me that it would be a breach of contract terms on the Government’s part if the CO were to issue a unilateral change order on this contract.
Questions:
Does the FAR permit issuance of a unilateral change order extending the Period of Performance end date under a Firm-Fixed-Price Purchase Order for services containing 52.212-4 and no other changes clauses?
Does FAR 43.202 give Contracting Officers the authority to issue a unilateral change order against any contract?
Is it permissible to cite FAR 43.202 as the authority?
- C
C Culham
Mar 8, 2016 · 10y ago
Your inclination is correct, the contract terms and conditions apply, the FAR has no bearing.
- G
Guest Vern Edwards
Mar 8, 2016 · 10y ago
Your colleague is wrong.
First, FAR 43.202 does not authorize contracting officers to issue change orders. The correct interpretation is that if a change order is to be issued, then the contracting officer must be the one to do it, unless authority has been delegated to an administrative contracting officer. The authority to issue a change order comes from a changes clause in a contract. See FAR 43.201(a).
Second, as you correctly pointed out, FAR 52.212-4 expressly states that all changes must be bilateral.
- i
illzoni
Mar 8, 2016 · 10y ago
Lacking another clause that would give the government the unilateral right to exercise an option (52.217-8 or -9), 52.212-4(c )'s requirement that all changes be bilateral should prevail.
- j
ji20874
Mar 8, 2016 · 10y ago
We don't want to confuse the issue. An option exercise is not a change order.
- i
illzoni
Mar 8, 2016 · 10y ago
ji20874 said:
We don't want to confuse the issue. An option exercise is not a change order.
Sure.
Neither is a commercial contract modification citing 52.212-4.
But I suspect we don't have the full picture if we read the OP literally. He says he's processing a modification to "extend the Period of Performance only." However, I'm betting the quantity is also increasing, otherwise it would be the contractor asking for an extension to complete the given task. OTOH, it could just be a PO for a fixed task that took longer than agreed and they're trying to clean up the contract file with a mod to match the POP to the actual completion date.
- G
Guest Vern Edwards
Mar 8, 2016 · 10y ago
illzoni:
While you make good points about your response, I agree with ji20874. The original post explicitly uses the term "change order" -- five times, in fact.
The question asked was: "Does FAR 43.202 give Contracting Officers the authority to issue a unilateral change order against any contract?"
Carl gave the correct answer: No.
- i
illzoni
Mar 8, 2016 · 10y ago
Fair enough.
- m
myfrogleaps
Mar 8, 2016 · 10y ago
Thank you all for taking the time to respond. I really appreciate the feedback.