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  • Question

    Is it possible to do a bilateral contract modification to change the RDT&E CLIN to a CPFF or time and materials? POlease let me know.


    Answer

    There is not specific coverage in the FAR on how to make the change you describe.  There is no appropriate clause for this type of action.  So, the short answer is yes, you could in theory issue such a modification assuming that the contract type is selected appropriately and that the modification is executed correctly with the consent of both parties and that the requirements of FAR Part 6 are examined and considered.  Absent specific guidance in the FAR, consider the guidance at FAR 1.102 “Statement of Guiding Principles for the Federal Acquisition System”.
     
    FAR 1.102(d) states that “the role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs.  In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedures is in the best interest of the Government and is not addressed in the FAR nor prohibited by law (statue or case law), Executive order or other regulation, that strategy, practice, policy or procedure is a permissible exercise of authority.”  This language seems to apply in this situation.
    So in deciding which option to pursue you will need to carefully review any ancillary guidance in the FAR concerning:
    ·  the contract modification you are considering as well, and
    ·  the contract type that you ultimately select. 
    Examples of topics you may need to consider, depending upon the specifics of your situation, follow.
    1. Was the contract awarded competitively?  If so, consider how/if the contract type of the RDT&E CLIN affected the competition.  A J&A should be considered in doing a modification of this type.
    2. Is/could this modification be considered a new contract action, particularly since the CLIN was not negotiated?  If so, considerPart 6 FAR .  (This relates to number 1 above.)
    3. Consider de-obligating the funding and executing a new requirement for the services you need if that is an appropriate and reasonable course of action.
    4. If you ultimately decide to issue a modification to change the contract type of the RDT&E CLIN from FFP to T&M, be certain to follow DOD requirements for a D&F at DFARS 216.601. 
     

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