Can a contracting officer add clauses 52.217-8 & 52.217-9 to an existing contract unilaterally under an administrative modification? They have previously exercised options under this contract, without these clauses incorporated.
ANSWER: According to FAR 43.103(b), unilateral mods are appropriate in following situations:
(1) Make administrative changes;
(2) Issue change orders;
(3) Make changes authorized by clauses other than a changes clause (e.g., Property clause, Options clause, or Suspension of Work clause); and
(4) Issue termination notices.
An administrative change include things like changing or correcting a fund cite, changing the COR's name and contact information, changing a payment office, etc. Bi-lateral mods are appropriate in the following situations:
(1) Make negotiated equitable adjustments resulting from the issuance of a change order;
(2) Definitize letter contracts; and
(3) Reflect other agreements of the parties modifying the terms of contracts.
I believe the addition/deletion of a clause in the contract is essentially adding/deleting a term and condition to the contract. Terms and conditions are what governs the relationship, rights and responsibilities of the parties to the contract. Therefore, I think a bi-lateral mod would be required pursuant to para (3) ("Reflect other agreements of the parties modifying the terms of contracts"). I highly recommend that you discuss the missing s with your legal advisor and the contracting officer to get their perspective as well as ensure legal sufficiency. The fact both parties agreed to exercise other options on the contract (and the contractor has performed the work under the option) makes it evident that both parties intended for the missing clauses to be in the contract. A bi-lateral modification to incorporate the clauses would just formalize that understanding to prevent any misunderstanding down the road. I'm not sure this is one of those clauses where the Christian Doctrine would apply, but that might be another discussion item with your attorney and contracting officer.