they may have. If a person reading it for the first time has questions, those will probably become ambiguities down the road. Close those gaps. Make sure you include all but only necessary clauses and that they do not contradict one another. Don’t rely only on your contract writing system or a clause logic pro- cess to capture all required provisions or clauses. Do include the clause at FAR 52.243-7 Notification of Changes if you meet the criteria. It requires the vendor to notify the contracting offi- cer if they believe someone is chang- ing the contract. Have a post-award conference (FAR subpart 42.5) with all the players from the government and contractor organizations. Take copious notes and send them to everyone. Have everyone sign a statement explaining who has what authority. Make sure it states that the contracting officer’s representative or others cannot change the contract. Remind them that there are many cases they can review in the American Bar Association Forum on Construc- tion Law. Good luck! You’ve got this. JONES is an intermittent professor of contract management in the DAU South Region. She has worked in the warfighting contracting field for 46 years and holds a B.S. from the College of William and Mary. The author can be contacted at jennifer.jones@dau.edu . The views expressed in this article are those of the author alone and not the Department of War. Reproduction or reposting of articles from Defense Acquisition magazine should credit the authors and the magazine.
The Disputes Act allows the government to include language requiring the contractor to “proceed diligently with performance of the contract” per the contracting officer’s decision during the entire disputes process.
DFARS 233.215 mandates the use of the Alternate I when purchasing cer- tain major systems (aircraft, naval vessels, combat vehicles); purchas- ing certain major systems (aircraft, naval vessels, combat vehicles); the contracting officer determines con- tinue performance is critical to na- tional security or public health; or the head of the contracting activity de- termines it necessary. Choose wisely and document. If you are thinking that this seems like a very painful process, you are correct. I remember when I was an intern making copies and creating this huge black binder of information for something they called a Rule 4 file. I had no idea what it was or why we called it that. Going to court or tes- tifying in front of the ASBCA is hor- rible. This is a time- and soul-sucking endeavor. Are there any alternatives? Yes, there are! The act specifically al- lows us to use ADR procedures. In fact, if the contractor requests we do so and we refuse, we must provide written rationale citing one of only six exceptions from Title 5 Section 572. Alternate Disputes Resolution (ADR) FAR 33.201 defines ADR as “any type of procedure or combination of procedures voluntarily used to resolve issues in controversy. These proce- dures may include, but are not limited to, conciliation, facilitation, mediation, fact-finding, minitrials, arbitration, and use of ombudsmen.”
Appendix H of the rules for the CFC discusses procedures. And as you can see from Figure 1, there are a number of places where we can negotiate settlements without hav- ing to go through this entire process. While the use of ADR is beyond the scope of this article, I have provided links to additional resources for your reading pleasure. Requests for Equitable Adjustment Sometimes, rather than starting with a claim under the Disputes Act, contractors file requests for equitable adjustment (REAs). Many clauses specifically allow this. A prime ex- ample is the Changes clause at FAR 52.243-1. There are numerous discus- sions as to whether one should im- mediately start with a claim versus an REA. Our university has an Acqui- pedia article, “Request for Equitable Adjustment (REA),” that provides a nice summary of the pros and cons of each. Just be aware that an REA can become a claim under the Dis- putes Act quickly, so be prepared to react accordingly. In summary, the best way to avoid needing to deal with these matters is to have clear solicitations and con- tracts with no ambiguities. (As we know from basic contract law, ambi- guities are read against the drafter— i.e., the government.) Have someone not involved in the process review the PWS—reading it as an offeror—and jot down any questions or thoughts
Related Resources • Contract Claims • Request for Equitable Adjustment (REA) • CLC 044 Alternative Dispute Resolution (Course)
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