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  • Question

    Can mandatory FAR clauses be added in via a unilateral modification? Can they be added in conjunction with another unilateral action (i.e., exercise of option period)? What is the proper authority to cite on the SF30 block 13 when adding in mandatory clauses? Does this constitute an administrative mod or a supplemental agreement? Because the preponderance of work is for the option period, can this be coded as "exercise an option" in FPDS as the reason for modification?


    Answer

    This should be a bilateral modification. For administrative ease you may exercise the option and incorporate the clause within one bilateral modification. FPDS should auto trigger that this is a bilateral modification. Incorporate within the modification that it is also an exercise of an option if the option is exercised at the same time. Be sure to document your file. The reason why insertion of the clause requires a bilateral modification is as follows:

    According to FAR 43.101, an Administrative change means a unilateral contract change, in writing, that does not affect the substantive rights of the parties. Therefore, one of the questions to ask is whether the substantive rights of the parties are affected? According to the Contract Attorney's Deskbook (2020), a substantive change is a contract change that affects the substantive rights of the parties with regard to contract performance or compensation. Substantive changes alter the terms and conditions of the contract in ways that affect the substantive rights of the parties by adding, deleting, or changing the work required and/or compensation authorized under the contract. The change only has to do one (change the work or change the compensation). Here we are altering the terms and conditions of the contract. See The Government Contracts Reference Book (Nash,O'Brien-Debakey, and Schooner) which provides the definition for Terms and Conditions "all the provisions of a contract.  .  .  Standard conditions are set forth in FAR Part 52."  You are adding a contract clause that is changing the work. You are modifying a term of the contract FAR 43.103(a)(3)[This is your authority to use in Block 13.C of the SF30]. Examples of administrative changes don't affect the work required by a contractor (examples include: correcting changes in the fund citation, names and phone numbers of POCs). This is not the case here. This clause prohibits the contractor from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of the clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. The clause also mandates reporting requirements to the contractor and requires the contractor to include it substantially as a "flow-down clause" in any subcontract.  

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