Bilateral modification of a delivery order after contract POP

[Fisherr]

I am managing an IDIQ contract with the following clause:

52.216-22 INDEFINITE QUANTITY (OCT 1995)

(a) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract.

( Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the "maximum." The Government shall order at least the quantity of supplies or services designated in the Schedule as the "minimum."

© Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations.

(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's rights and obligations with respect to that order to the same extent as if the order were completed during the contract's effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after the completion date of outstanding orders, unless otherwise modified by mutual agreement.

After the basic contract period of performance (POP) expired I received funding for additional quantities of the same contract line items (CLIN) as were ordered on a delivery order issued before the basic contract POP expired. With the POP now expired, can I legally modify (on a bilateral basis) the same delivery order to incorporate the new quantities? The contractor is still due to deliver on all the CLINs in the delivery order (in other words the delivery order remains outstanding). The proposed delivery order modification will likely extend deliveries out beyond the delivery dates that were established when the delivery order was issued.

[ji20874]

You can do anything you want to do.

But if you want to be guided by correct principles, you will see that your new requirement could be a new task order under your IDIQ contract. What's that? You can't issue a new task order because the ordering period has ended? Oh, well then you cannot issue a new task order.

Can you modify an existing task order to add the new work, you ask? Additional quantities, new work, it all sounds beyond the scope of the existing IDIQ contract to me, and beyond the scope of any pre-existing task orders, too.

If you want to circumvent CICA and give this new work to your incumbent contractor by modifying a task order under an IDIQ contract,

you can -- the contractor probably won't complain -- and no one else will know the difference because you won't post the action to FedBizOpps. But should you award a new requirement by modifying an existing task order on a IDIQ contract whose ordering period has passed? That is the real question.

Based on what little I see in the original posting, this looks like new work that needs to be treated like new work.

[Guest Vern Edwards]

Another consideration is that the language you quote for FAR 52.216-22(d) deviates from FAR. Was the deviation authorized?