Use of FAR 52.216-18 to unilaterally modify a delivery/task order

[dmbfan73]

I'm new to a base and need some thoughts on the use of FAR 52.216-18 that doesn't seem right to me.

We have several IDIQ contracts for services where the basic contract has a line item for 12 months of service at $X/month. Due to the world of budget insanity we now live in the customer typically only receives 1-3 months of funding at a time. So at the beginning of the 12 month performance period a task order is unilaterally issued for say 1 month of service. When additional funding is received, the unit here has been unilaterally issuing a modification to the original order to increase the quantity by another 1-3 months (however much funding they receive) using 52.216-18 as the authority. So at the end of the year we could end up with one task order for the basic service with up to 12 modifications to order/fund the service instead of 12 separate task orders.

They have been modifying the existing orders instead of issuing a new order because the resource advisors provide the funding through a increase to the original purchase request (9L for Air Force) instead of providing a new PR in order to be able to track the funding. Although I don't understand what it's like to work in finance I don't necessarily agree with this practice but I have to pick my battles.

I have read the thread "Using FAR Clause 52.216-18, Ordering, to issue a unilateral mod for additional services" and agree that if we want to order an additional month of service we should be issuing a new task order. However, due to the funding processes here that is not the reality. I also agree that nowhere in 52.216-18 does it say I have the authority to unilaterally modify an order, only to place an order, but when I stated this I was told that since it doesn't say you can't do it then you can. Apparently there was a discussion here before I arrived and it was determined that we are, in effect, ordering additional services with no changes to the prenegotiated prices and terms & conditions so therefore the use of 52.216-18 is the appropriate authority.

I just received my first task order modification to review/sign and I'm not getting the warm fuzzy that the current process is proper. In addition, none of the "Reason for Modification" choices on the contract action report apply to ordering additional services which further leads me to believe it shouldn't be a unilateral mod.

In my opinion if we are going to order services this way we should bilaterally modify the order using 52.212-4©. I reviewed similar contracts at other bases and most are doing it the same way they have been here, unilaterally modifying using 52.216-18. So should I just drink the kool-aid or balk at this?

(As a side note, I'm not looking for a discussion on appropriateness of using a D type contract versus a C with the LOGO clause when we have a known requirement as I think I would need an army to fight that battle here).

[Don Mansfield]

Is the IDIQ single-award or multiple-award?

[Guest Vern Edwards]

Let me say at the outset that I sympathize with your concerns. However, I don't think that the process you have described is illegal. It's more a matter of bad form, sloppy procedure. Does form matter? I think so, but most people do not. Somebody in your organization has devised a process that "works," and they don't want to tamper with it. So you are working in a sloppy organization. If we could look into the multitude of contracting offices and see what they are really doing, we'd probably be horrified. But stuff gets bought. That's all that matters to most people. Especially people who work in base level contracting, where almost anything goes.

As for unilateral versus bilateral -- the ordering clause allows you to buy supplies or services "by issuance of delivery orders or task orders...." Orders can be issued unilaterally under the ordering clause, so why not mods that increase the scope of an order? Mods are not delivery orders or task orders, and I suppose the contractor could object that the issuance of mods is not consistent with the express terms of the contract, but I'm sure that the contractor could not care less how it gets the business as long as it is gets the business.

[dmbfan73]

Don Acquisition, all are single award so no fair opportunity issues. Sorry, should have specified that.

Mr. Edwards, thanks for the reply. I'm not trying to rock the boat so as long as it's not illegal then I'm good with it. Just wanted to make sure we weren't reading more into what we could do with the authority than what the clause actually says.

[Guest Vern Edwards]

Another point:

I also agree that nowhere in 52.216-18 does it say I have the authority to unilaterally modify an order, only to place an order, but when I stated this I was told that since it doesn't say you can't do it then you can.

The "you can if it doesn't" rule comes from FAR 1.102(d) and 1.102-4(e). That applies to regulations, not to contracts. It does not follow that you can do something if the contract does not say that you cannot do it. FAR 52.216-18 is a contract clause, and it is not subject to the "you can if it doesn't" rule. Whoever told you that you can do something because the clause is silent about it needs to attend a remedial contract law class.

[Guest Vern Edwards]

Nothing wrong with rocking the boat. Just don't assume that rocking it will get you anywhere.

[Boof]

I have found it typical to award a services task order for the year with incremental funding on it. All the rest of the funding mods are unilateral administrative mods just to add funds. If funds do not come, the services have to end but I have never seen that happen.

[dmbfan73]

Boof that would be the correct way to do it. Here, however, they do not award the task order for the entire year's worth of performance and then incrementally fund as money is received but instead award and fund a month at a time.