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  • Question

    Can the Contract Specialist issue an unilateral mod to add an Incremental Funding Clause? Understand that if the clause is added, the actual funding can be unilateral and that it is an administrative change. I believe it should be bi-lateral because it may be interpretted as limiting the government's liability.


    Answer

    1. The FAR references quoted below in pertinent part are applicable to this response.

    FAR 43.102 -- Policy
    (a) Only contracting officers acting within the scope of their authority are empowered to execute contract modifications on behalf of the Government. Other Government personnel shall not—
      (1) Execute contract modifications;

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

    (b) Unilateral. A unilateral modification is a contract modification that is signed only by the contracting officer. Unilateral modifications are used, for example, to -- (1) Make administrative changes

    FAR 43.301 -- Use of Forms

    (a)(1) The Standard Form 30 (SF 30), Amendment of Solicitation/Modification of Contract, shall be used for -- (iv) Administrative changes such as the correction of typographical mistakes, changes in the paying office, and changes in accounting and appropriation data.

    2. First, pursuant to FAR 43.102(a)(1), only the Contracting Officer, and not the Contract Specialist, may execute modifications to contracts. Next, the addition of an Incremental Funding clause to the contract represents a change to the contract terms and conditions. Pursuant to FAR 43.103(a)(3), only bilateral modifications may be used for this purpose. Finally, while unilateral modifications may be used to implement administrative changes, FAR 43.301(a)(1)(iv) defines an “administrative change” to consist of such actions as the correction of typographical mistakes, changes in the paying office, and changes in accounting and appropriation data and therefore would not include the addition of a new clause to the contract.

    3. Based on the above, and the limited information provided in this inquiry concerning the acquisition, the Contracting Officer may only execute a bilateral modification to add an Incremental Funding clause to the contract, and the issuance of a unilateral modification would not be permitted.
     

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