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Task Order Language vs. Contract Language vs. CO direction

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Question, and please forgive any ignorance I show in thee question itself --

1) IDIQ contract - 1 awardee (not agency wide or GWAC or anything, but a contract focused on a specific purpose)

2) Funding on individually awarded task orders, which specify to CLINs, which in each task order are a subset of the master CLIN list in the contract.

3) Dispute over payment. At the end of dispute, Contracting Officer emails (paraphrased) --finish the work and we'll pay for it--

4) Contractor finishes the work, and submits invoices. Invoices rejected because they don't refer to a specific task order. Assume that they do, however, refer to CLINs listed in a task order, and are for work that was previously allowed (i.e. "Develop Widget 1" - Invoice allowed, it refers to a task order and was prior to the dispute "Develop Widget 1" - invoice not allowed, it doesn't refer to a task order and was after the dispute, but also after the CO email saying "finish the work and we'll pay for it")

Contractor says "you asked for and accepted this work." Agency says "it's not on a task order" -no payment.

Where can I find a discussion of authority of task orders vs. contract itself vs. contracting officer's written representations, to put all of this in some sort of framework that makes sense?

Thanks!

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I'm assuming the IDIQ Contract states that the contractor is directed by Task Order(s) (w/Funding). If there is no Task Order for the work, there is no funding and no authorization to proceed with the work.

It sounds like the Contractor did not have a Task Order and was not authorized to do the work.

I'm making a lot of assumptions here though.

Was there any language in the CO's email to the Contractor that would be construed as authorization to proceed?

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Question, and please forgive any ignorance I show in thee question itself --

1) IDIQ contract - 1 awardee (not agency wide or GWAC or anything, but a contract focused on a specific purpose)

2) Funding on individually awarded task orders, which specify to CLINs, which in each task order are a subset of the master CLIN list in the contract.

3) Dispute over payment. At the end of dispute, Contracting Officer emails (paraphrased) --finish the work and we'll pay for it--

4) Contractor finishes the work, and submits invoices. Invoices rejected because they don't refer to a specific task order. Assume that they do, however, refer to CLINs listed in a task order, and are for work that was previously allowed (i.e. "Develop Widget 1" - Invoice allowed, it refers to a task order and was prior to the dispute "Develop Widget 1" - invoice not allowed, it doesn't refer to a task order and was after the dispute, but also after the CO email saying "finish the work and we'll pay for it")

Contractor says "you asked for and accepted this work." Agency says "it's not on a task order" -no payment.

Where can I find a discussion of authority of task orders vs. contract itself vs. contracting officer's written representations, to put all of this in some sort of framework that makes sense?

Thanks!

Surely the work that the CO said to finish was work that had been initiated on a task order, so why not identify the task order on your invoice? A "proper invoice" must include the order number, per FAR 32.905( B)(1)(iii), so can't you just re-submit the invoice with the order number included?

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Thank you already, all three who have posted (and others who may post), this has been very helpful. To clarify on the comments above, first, I'm coming in late, so don't know all the answers:

1) Was the work performed under a Task Order or not?

--I think that's the ultimate question. CO claims it was not performed under a task order. There are a number of Task Orders issued, and it looks like 3 of them include CLINs that are also included on the invoices. Prior invoices in our series with this agency refer to a task order. The invoices at issue say "TBD" and appear to have items in them that are from multiple task orders. But, previous invoices were accepted with the same combination of CLINs, so maybe I'm missing a page from the task orders.

--But, to complicate (or clarify?) the orders were primarily for units of a service (like "copying") so it would be 50,000 units of copying at 10 cents per page, with some hours also, but primarily these units of a delivered item. So are they properly considered "Delivery Orders" and does that make a difference?

2) Was there any language in the COs email that could be construed as authorization to proceed?

--I think so, there is language (paraphrased, but I think it captures what was said) - this email constitutes our commitment to pay for all delivered work. Please deliver the final product.

3) Why not identify the task order on your invoice and re-submit?

--That is a very good question. I'll take that up with the boss, because that seems to be the solution to the problem. But, what if the task orders are over (period of performance), or the amount is over the amount contained in the task order?

Again, thanks very kindly for your time and thoughts!

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2) Was there any language in the COs email that could be construed as authorization to proceed?

--I think so, there is language (paraphrased, but I think it captures what was said) - this email constitutes our commitment to pay for all delivered work. Please deliver the final product.

3) Why not identify the task order on your invoice and re-submit?

--That is a very good question. I'll take that up with the boss, because that seems to be the solution to the problem. But, what if the task orders are over (period of performance), or the amount is over the amount contained in the task order?

Again, thanks very kindly for your time and thoughts!

Based on the information you’ve provided, I would send an email something like this to the CO:

CO

Our company submitted an invoice for the work authorized by the Notice to Proceed (or Letter Contract) issued by your office on (date) (attached email). The work has been completed and accepted by the Operations Team (or Gov PM) (assuming this is true). We need the corresponding Task Order associated with this NTP to properly invoice for this work. I believe a no-cost modification to Task Order (insert task order number) extending the period of performance would suffice as it contains the CLINs associated with this work.

Please let me know how to proceed.

Thanks, Happy Kwanzaa

Far Fetched.

Note: This is assuming the base IDIQ contract is still current and that there are Task Orders with funding still available (i.e. have not been deobligated).

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I would recommend following #7 of Vern Edwards Tips for Clueless Would-Be Contractors:

"...7. If you win the contract, take a firm, formal, arm's-length, businesslike approach to all aspects of the deal. Comply strictly with all contract terms and insist that the government do the same. Know all of your contractual deadlines and meet them. Know all of the government's contractual deadlines and notify them in writing the moment that they are late. The very moment. Neither ask for nor grant exceptions except through formal processes, such as engineering change proposals, formal waivers, and change orders. Know your obligations and fulfill them. Know your rights and insist upon them. When you truly believe that the government owes you something, ask for it in writing. If you don't get favorable action within a reasonable period of time, submit a claim in accordance with the contract Disputes clause and FAR Subpart 31.2. If the contracting officer does not make a decision within the deadlines set by the Disputes clause, hire an attorney and appeal to a board of contract appeals or to the Court of Federal Claims, unless you are willing to let the government keep what you think is yours..."

I would also recommend you review all 14 of his tips:

You indicate that you are coming "late" so I would infer that you were passed this action mid-course. Therefore, stop now and begin anew. Read the entire contract and start to gather all the facts of the issue at hand and after reading Vern's advice take action.

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But, what if the task orders are over (period of performance), or the amount is over the amount contained in the task order?

Again, thanks very kindly for your time and thoughts!

That would depend on what the contract and/or order says and the reasons for the delay or overrun. For example, was the delay due to the government not providing documents to copy in time to complete the job on schedule? If so, then the period of performance should probably be extended. Did the order call for 50,000 units of copying at 10 cents per page and you wound up making 51,000 copies? You may be out of luck, but a flexibly priced contract such as this probably has some provision on how to deal with situations like this.

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I would recommend following #7 of Vern Edwards Tips for Clueless Would-Be Contractors:

"...7. If you win the contract, take a firm, formal, arm's-length, businesslike approach to all aspects of the deal. Comply strictly with all contract terms and insist that the government do the same. Know all of your contractual deadlines and meet them. Know all of the government's contractual deadlines and notify them in writing the moment that they are late. The very moment. Neither ask for nor grant exceptions except through formal processes, such as engineering change proposals, formal waivers, and change orders. Know your obligations and fulfill them. Know your rights and insist upon them. When you truly believe that the government owes you something, ask for it in writing. If you don't get favorable action within a reasonable period of time, submit a claim in accordance with the contract Disputes clause and FAR Subpart 31.2. If the contracting officer does not make a decision within the deadlines set by the Disputes clause, hire an attorney and appeal to a board of contract appeals or to the Court of Federal Claims, unless you are willing to let the government keep what you think is yours..."

I would also recommend you review all 14 of his tips: http://www.wifcon.co...-be-contractor/

You indicate that you are coming "late" so I would infer that you were passed this action mid-course. Therefore, stop now and begin anew. Read the entire contract and start to gather all the facts of the issue at hand and after reading Vern's advice take action.

It's too late for the hard stance, a diplomatic approach is the only way out of the OP's mess.

Also - Vern has said that what you've cited is not a one size fits all approach.

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Guest Vern Edwards

Start with these clauses, which should be in the contract:

1. The Ordering clause, FAR 52.216-18:

(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.

2. The Indefinite Delivery clause, FAR 52.216-22

(B) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause.

Now, read the billing instructions in the contract, assuming that there are any. My thinking is that if you cannot link the work you did to a particular task order, then you are not entitled to payment for the work. Period. A CLIN is not enough. The CLINs are just price stickers. You have to have an order and a CLIN reference.

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Thank you all very much, I appreciate the insight. To answer the questions posed, and then I'll ponder on all of this myself and think through what I've read here:

1) "was the delay due to the government not providing the documents to copy?"

I don't know what the delay was, and it's not clear if there was a 'delay' in the sense that work was promised in a specific period of time and both sides agreed that's when the work would be completed and then it wasn't completed in that time, or if its was more a difference in the parties' expectations of when the work would be completed. I can't tell.

2) "Did the order call for 50,000...but we were handed 51,000..."

It's more that the order itself was indefinite. The contract was with Agency A, but the day-to-day work itself was directed by Agency B, so it could be that Agency A set an order limit (50,000 copies), and then Agency B's people ignored it / didn't know what the order limit was ("copy this, it's 51,000 pages")?

3) Linking a CLIN on the invoice to a CLIN on a task order

Each of the CLINs on the invoice match up to a CLIN on a task order. In some cases. The task order is just not listed on the invoice itself, and it looks like (I've now put together a spreadsheet) the amount of the unpaid invoices would cause individual CLINs to go above what appears to be a ceiling set in the task order or orders the invoice should (but doesn't) refer back to.

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Guest Vern Edwards
1) Was the work performed under a Task Order or not?

--I think that's the ultimate question. CO claims it was not performed under a task order. There are a number of Task Orders issued, and it looks like 3 of them include CLINs that are also included on the invoices. Prior invoices in our series with this agency refer to a task order. The invoices at issue say "TBD" and appear to have items in them that are from multiple task orders. But, previous invoices were accepted with the same combination of CLINs, so maybe I'm missing a page from the task orders.

--But, to complicate (or clarify?) the orders were primarily for units of a service (like "copying") so it would be 50,000 units of copying at 10 cents per page, with some hours also, but primarily these units of a delivered item. So are they properly considered "Delivery Orders" and does that make a difference?

The question called for one of three answers: (1) Yes, (2) No, or (3) I don't know. Being charitable, what we got for an answer was I don't know. Okay, this is simple: Go find out whether the answer is yes or no. All of the other "information" you have provided is useless. All anyone can do with it is speculate. Why bother?

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Touche, Vern, although I challenge the claim of only three possible answers. I propose a fourth:

1) Yes, the work was performed under a task order

2) No, the work was performed under a task order

3) I don't know, because I don't know what work was performed, or

4) I don't know, because I don't know what "under a Task Order" means vs. "not under a Task Order"

If the answer's 3, I can go back and find out what the work was, when, etc. If the answer's 4, I can stick my head out and ask the Wifcon message board, fully prepared for the consequences of asking what may be an ill-informed question.

I think my answer is a combination of 3 and 4. I don't know if the work was performed under a Task Order, partially because I don't know what it means for work to be performed "under a Task Order." On my side, I'm going back to get a better understanding of when, what, where, how, etc. On the asking Wifcon side, I think we've come full circle back to my original question, which is, with the benefit of what I've learned from the comments and my research from what's been suggested:

"What does it mean for work to be performed under a Task Order?" If a contracting officer writes: "do tasks x, y, and z," is that a task order, because the contracting officer ordered the contractor to perform a task, or is it only a Task Order if there's a signed "Optional Form 347". Or, to perhaps oversimplify, "what's a Task Order?"

Again, I do appreciate all the help. I've gone through the FAR and the contract starting with 52.216-18, and gone back to the technical manager, and reviewed the invoices, contract file, and everything else based on what I've heard here.

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...quick follow up, more importantly than "what's a Task Order," what books, resources, inline contracting introductions, etc., exist where I can find the answer to "what's a Task Order", without having to bug the Wifcon message boards every time...

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Guest Vern Edwards

Gee, John, you're in a mess if you don't know what a task order is. It's obvious that your answer is some form of "I don't know."

You can buy a copy of The Government Contracts Reference Book, which is a dictionary of terms, and a copy of Formation of Government Contracts, 4th ed., and Administration of Government Contracts, 4th ed. But it will take you a while to work through those. There are many resources on the web, but they, too, will take time to read and understand.

I don't mean this to be an insult, and with all due respect, I don't know how you think you can solve your company's contractual problems when you lack such elementary knowledge. Perhaps your company should retain the services of a government contracts attorney or consultant. (I have no recommendations.) I'm not sure that Wifcon is an appropriate resource for someone who knows so little about the business. You are likely to leave here more confused than enlightened, or even misled. Be careful. You probably don't know enough to know good information from bad, and this board is not refereed except by participating members.

I'm sorry, but I simply don't have time to provide a tutorial. Maybe someone else here will do so for you. Be careful, however.

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Possibly missing from this discussion is reference to FAR 16.505 and specifically 16.505(a)(7). As provided in this thread already the ordering clause actually contained in the contract would apply but in answer to a general question of "what is a task order" the definitioni of FAR 2.101 read with FAR 16.505(a)(7) may help in clearing up what a task order is.

"16.505(a)(7) Orders placed under indefinite-delivery contracts must contain the following information:

(i) Date of order.

(ii) Contract number and order number.

(iii) For supplies and services, contract item number and description, quantity, and unit price or estimated cost or fee.

(iv) Delivery or performance schedule.

(v) Place of delivery or performance (including consignee).

(vi) Any packaging, packing, and shipping instructions.

(vii) Accounting and appropriation data.

(viii) Method of payment and payment office, if not specified in the contract (see 32.1110(e))."

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Guest Vern Edwards

An IDIQ contract is one of three "indefinite delivery" contracts: (1) definite quantity, (2) indefinite quantity, and (3) requirements. What they all have in common is that the parties enter into them with the understanding that the contractor will do nothing until the government issues a command (order) to do so.

An order is a command to perform in accordance with the terms of the contract. A "task order" is a command to perform a service. A "delivery order" is a command to deliver goods. The contractor is not obligated to perform until the government issues an order. The government is not obligated to pay for anything until it has issued an order for it.

A task or delivery order must specify the particulars of performance: what, when, where, etc. To work "under" an order means to work as specified by an order and pursuant to the terms of the underlying contract.

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All, thanks again for your help, it has clarified things for me immensely. To answer a couple of questions raised here:

1) The task order definitions - extremely helpful, thanks.

2) The Ordering and Delivery clauses - are not in the contract

3) Did the contract allow the CO to issue oral tasks? -Yes-

Thanks again.

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Since the contract authorized oral orders, I would argue that the CO directing you to perform work and promising to pay was a task order issued orally. Alternatively, I would argue that the oral direction from the CO was a constructive change to an existing task order.

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Guest Vern Edwards

Something is wrong. The "IDIQ" contract does not contain either the indefinite-quantity clause nor the ordering clause. Yet the contract authorizes the CO to issue oral orders. How does that work?

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John Doe - I have to ask..do you KNOW for sure what type of contract it is that you have? Did someone "tell" you it's an IDIQ contract or did you read it in the contract language somewhere? It's sounding like you might have a Blanket Purchase Agreement (BPA) and not an IDIQ. Does your contract have a "guaranteed minimum order" stated anywhere?

As much as I hate to say this, and it's not meant to be offensive, but far too often contractors really have no idea what type of contract they have (or don't have). See if maybe you have a BPA versus an IDIQ.

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3) Did the contract allow the CO to issue oral tasks? -Yes-

Thanks again.

The contract specifically states this? What language, exactly, did you find that makes you belive this?

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