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As stated, stupid question of the day...but here it goes...

Here is the situation:

- We have an IDIQ for services;

- The services are performed in accordance with the IDIQ's statement of work;

- The services are ordered as labor-hours;

- A task order, T0001, is issued on an OF 347 to order services as described above;

- It becomes apparant that the services are required beyond the initial completion date and at additional quantities beyond what was initially ordered.

So, as stated, additional services are required.

Is it appropriate to order the additional services unilaterally using the SF 30's block 13D, and citing the authority of FAR Clause 52.216-18, Ordering?

So, sure, it's not exactly in accordance with the ordering clause:

a ) Any supplies and services to be furnished under this contract
shall be ordered by issuance of delivery orders or task orders
by the individuals or activities designated in the Schedule. Such orders may be issued from __________ through ____________ [insert dates].

b ) All delivery orders or task orders are subject to the
terms and conditions of this contract
. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

c ) If mailed, a delivery order or task order is considered ?issued? when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule.

But please, tell me how continuation of work cannot be unilaterally ordered via modification, however it can be unilaterally ordered via issuance of the work on an OF 347.

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Guest Vern Edwards

If you are changing the contractor's duties under the existing order, then an SF30 modification is the way to go. If the change is not covered by the changes clause, which is the clause that permits unilateral modification of certain things, then you must negotiate a supplemental agreement. The ordering clause lets you place orders; it does not authorize you to modify an existing order.

If all you are doing is buying more of the same type of service, then you should issue a new order instead of modifying the existing one.

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Vern,

Thank you for your response.

So even though the new services which are being ordered are a continuation of the services (i.e. no change to the duties, only additional ordering of those duties) for a specific project (we issue a task order for each major project), you would issue a new task order. But I think that you may be saying that it is more appropriate to use perhaps the SF 30's block 13C and to bilaterally execute the modification "by mutual agreement of the parties".

I think that you're also saying that using the ordering clause to unilaterally issue the modification for ordering the continuation of the services is never acceptable.

Thanks,

-Will

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Guest Vern Edwards

I'm not sure what you mean by "continuation" of the services. I'm reading you to mean that you hired the contractor to do something for a while and now you want it to do the same thing for an additional period. Is there any functional connection between the initial period and the period to follow, or is it simply more of the same? If it's simply more of the same, and performance during the second period does not depend on anything that happened during the first, then I say issue a new order. But if there is some functional connection, such that performance during the second period depends on something that happened during the first period, then a modification might be more appropriate. So, if the contractor was engaged in some task during the first period that would have to be completed, inspected, and accepted during the second, I would say that there is a functional connection between the two periods and a modification is more appropriate.

As for the Ordering clause -- read it. Where does it say anything about modifying an order? Nowhere. So how could you, and why would you, "use" the Ordering clause to unilaterally modify an existing order? Read your contract! Pay attention to the words. The words mean something.

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Do the procedures of FAR 43 apply to task orders under IDIQ contracts? (I'm really asking.)

43.000 Scope of part.

This part prescribes policies and procedures for preparing and processing contract modifications for all types of contracts including construction and architect-engineer contracts. It does not apply to?

(a) Orders for supplies or services not otherwise changing the terms of contracts or agreements (e.g., delivery orders under indefinite-delivery contracts); or

(B) Modifications for extraordinary contractual relief (see Subpart 50.1).

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Guest Vern Edwards

FAR Part 43 applies to the modification of orders. FAR 43.000(a) means only that orders are not to be treated as if they were contract modifications.

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Assume single award ID/IQ. Otherwise, there will be a need to justify an excepton to fair opportunity. See FAR 16.505(B)(2)(i)© and (B)(2)(ii).

If single award ID/IQ, then I believe simply cutting a new order is the proper thing to do.

Vern (now I am asking), Could he not simply unilaterally extend the order using 52.217-8 (max 6 months of course) (assuming 52.217-8 is in the ID/IQ)? If it is in the ID/IQ can you just flow it down to an order or does the ID/IQ have to explicitly state the clause applies to both ID/IQ AND orders?

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Guest Vern Edwards

Good question about 52.217-8. Very good question.

I'm not sure how 52.217-8 applies to an IDIQ contract. It says:

Option to Extend Services. The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within _____ [insert the period of time within which the Contracting Officer may exercise the option].

What "performance" can the Government extend? Can it extend the ordering period of the basic contract, the period stated in FAR 52.216-22(d), the period of performance under an order, any of them, all of them? If applicable to individual orders, can it be applied to more than one order? If so, would the six month limit apply individually to each order, so that each order could be extended for up to six months? I don't know, and I don't know of any applicable case law. However, I do believe that a CO could write a special clause stating how the clause can be applied to a given contract.

This is a good example of my oft-repeated point that the answers to such questions depend on what the contract says. Based on my reading of FAR 37.111 and 17.208(f), I don't think that 52.217-8 was written with IDIQ contracts in mind, so it appears to be vague or ambiguous in that context. Frankly, I don't think it has any intended meaning with respect to IDIQ contracts. If a CO is going to put the clause in an IDIQ contract he or she must decide how it will be used, if at all. The CO must clarify its intended meaning with respect to an IDIQ in a special clause. Given that the meaning of the clause is unclear in the context of an IDIQ, at least to me, I don't think that CO clarification of intent via special clause would constitute a FAR deviation.

We sometimes expect too much from the standard FAR clauses. They weren't written to cover every possible contractual situation, and there is no point in arguing what they mean when trying to apply them to a situation to which they weren't designed to apply. Such arguments are purely speculative. Sometimes a CO must supplement a clause in order to make it fit a situation to which it was not intended to apply, but in which its use in that situation is not prohibited. That's when an alert, smart CO is worth his or her weight in gold.

Thanks for that question. I never thought about that before. Interesting problem.

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Vern,

My attempt at a syllogistic argument for the use of 52.217-8 in an ID/IQ (a similar argument can be applied to allowing its use for orders). NOTE: I have never (at least knowingly) attempted to apply this argument method. In fact, I just now learned what the phrase "syllogistic argument" even means.

Problem: Continuity of services needed. Assume all 52.217-9 (yes, that is dash 9) options have been exercised and you are negotiating a new ID/IQ and have encountered unforeseen delays.

Major Premise: IAW FAR 37.111 Extension of Services, FAR 52.217-8 is used when such an option is appropriate as prescribed in FAR 17.207(f).

Minor Premise: The option to extend services is appropriate as continuing service requirements for a new award are often delayed due to circumstances beyond the control of the contracting offices. Negotiating a short extension of an existing contract can be potentially costly.

Conclusion: Therefore, the inclusion of FAR 52.217-8 in an ID/IQ for recurring and continuing services requirements is not only appropriate, but imperative to protect the government from a potentially higher cost of negotiating a short term extension to an existing contract for such services.

On a side note. GSA FSS contracts contain 52.217-8. Why? because FSS contracts have their own option clause which, when exercised, are good for 5 year shots. During an FSS option evaluation, an FSS contractor may be audited. The audit process may go beyond the date which the option must be exercised. Rather than re-negotiate option terms (it would not be prudent to exercise a 5yr option during an audit), 52.217-8 is utilized to extend the services until the FSS 5yr contract option is either exercised or not (contingent upon results of an audit and possible re-negotiation of prices based on those audit results).

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Guest Vern Edwards

It's best that we disregard your argument and focus on your assertion that it's appropriate to include FAR 52.217-8 in an IDIQ contract. My response is: Why not?

But how do you intend to use it? To extend the ordering period? The last date on which performance is required? The performance period of one or more of the orders already in place? All of the above?

(And you should be studying, not messing around at Wifcon Forum.)

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