Guidance on the use of Over and Above Work, IAW 252.217-7028

[ipod24]

I am in need of some clarification, advice, input regarding a procurement and the contemplation of using Over and Above hours.

My requirement is vehicle maintenance services. Anticipated contract type is requirements with fixed pricing. However, due to the nature of the requirement, there is the factor of unscheduled repair. Prior procurement had captured unscheduled repair as its own CLIN (called labor-hour CLIN), as the materials were purchased by the Government/Government provided. I would like to deviate from this concept as I feel the labor-hour CLIN does not define the intent of the unscheduled repair. Hence, the Over and Above CLIN in lieu of a Labor-hour CLIN would be more suitable.

My concerns:

1. Based on previous threads and blogs about Over and Above work. Can this be funded up front with a Not To Exceed (NTE) on the dollar value?

2. Can we in some respect, negotiate the rate on labor (FTE, fully labored, the ODC, etc.) that would be associated with the efforts? So that when we do have to use the O & A CLIN we can already anticipate the price/total cost of the effort based on the labor hours needed to perform the services that was not anticipated on the fixed price CLIN? Now for each task order, prior to use of the O & A CLIN, that the COR negotiate with the contractor on how long it would take to get something fixed. Once they come up with the hours needed. Then the COR would factor those hours in with the originally proposed labor rates as agreed upon during award.

[Velhammer]

I don't see a problem with item 1. The PGI states (in part): "The blanket work request authorization may be in the form of a letter or contract modification (Standard Form 30)." If it was done in a "letter" there would already have to be funds on the contract.

For item 2, I would agree with negotiation of the rates based on "The clause at DFARS 252.217-7028, Over and Above Work, requires the contractor and the contracting officer responsible for administering the contract to negotiate specific procedures for Government administration and contractor performance of over and above work requests." and "To the maximum extent practical, over and above work shall be negotiated prior to performance of the work."

[Guest Vern Edwards]

When you ask a question like this it would help to know what agency you work for -- not the specific office, just the agency. It could make a difference. Knowing the agency could save us and you some time. For example: Are you with DOD? If so, have you seen the guidance in PGI 217.77 that Velhammer mentioned?

As for your first question, I'd like to elaborate on Velhammer's response. The answer depends on what the contract says about over and above work. In order for you to "fund" (i.e., obligate funds on) a CLIN, the CLIN must require the government to buy something, i.e., to spend appropriated funds. You cannot put money on a CLIN that does not obligate the government to buy something. If a "blanket work request authorization," as mentioned in the DOD PGI that Velhammer cited, authorizes the contractor to go ahead with over and above work without getting further permission, and caps the government's obligation at an NTE, then that would constitute a valid obligation and you could "fund" it. The blanket authorization is an obligation to pay the contractor for any work that it does and authorizes the work in advance up to a limit. But if the over and above CLIN does not require the government to buy anything, if it just lets the government buy something if it wants to, then you cannot "fund" the CLIN, even with a not-to-exceed amount and labor rates. See the GAO's "Redbook," Vol. II, Ch. 7. (The DOD clause, 252.217-7028, "Over and Above Work," does not require the government to buy anything.) I wouldn't bore you with this if I knew you were with DOD and that you were already familiar with the PGI.

As for your second question, I'm with Velhammer. I don't see any reason why you cannot agree in advance to rates. It sounds like a good idea. I think you'd be foolish not to do it if you issue a blanket work request authorization.

[ipod24]

I appreciate the response.

Vern in response to your question>> (1) The agency I work for DOD-Army. (2) I have read PGI 217.77 - Over and Above Work.

My agency would probabbly lean more towards a contract modificaiton (SF30). Now, just a side question to this... I know what is explcitly stated PGI 217.77 and DFARS 252.217-7028; however, would issuing a Task Order (TO) (SF 1449) specifially to just capture just O&A (e.g., O&A CLIN) requirement allowable? Possible occurance is that the requesting unit would want to consolidate all the O & A work into one Task, due to funding - they may not have the funds available when the O & A work was discovered, thus, doing a one time shotgun effort. I apologize for making this complicated just want to know my options.

[Don Mansfield]

I appreciate the response.

Vern in response to your question>> (1) The agency I work for DOD-Army. (2) I have read PGI 217.77 - Over and Above Work.

My agency would probabbly lean more towards a contract modificaiton (SF30). Now, just a side question to this... I know what is explcitly stated PGI 217.77 and DFARS 252.217-7028; however, would issuing a Task Order (TO) (SF 1449) specifially to just capture just O&A (e.g., O&A CLIN) requirement allowable? Possible occurance is that the requesting unit would want to consolidate all the O & A work into one Task, due to funding - they may not have the funds available when the O & A work was discovered, thus, doing a one time shotgun effort. I apologize for making this complicated just want to know my options.

It sounds like you are looking for a way to obligate funds right away and order services later. Let me ask you this--can you commit to ordering a minimum amount of unscheduled repair upon contract award? If so, then awarding a contract with a guaranteed minimum would allow you to obligate funds upon award (to cover the guaranteed minimum) and allow you to order unscheduled maintenance up to the guaranteed minimum as it occurs (I think you would have to order the services by the end of the fiscal year to comply with the Bona Fide Needs rule, however). Requirements contracts do not typically guarantee a minimum, but I don't know why they couldn't.