Jump to content
The Wifcon Forums and Blogs

TAP

Combination FFP/IDIQ Contracts

Recommended Posts

For combination FFP/IDIQ contracts containing the standard NAVFAC clauses and language below, would a modification (as referred to in 5252.216-9313) to exceed the maximum dollar value of the contract be considered "out of scope" and subject to the requirements of FAR 6.302 -- Circumstances Permitting Other Than Full and Open Competition? In other words, require a J&A?

Thanks!

TAP

Per NFAS 16.504-101 Facilities support indefinite quantity contracts:

(a) The contract amount on the award document shall be the total of the extended unit

prices for each line item for the base year.

(B) The "quantity" column on the Schedule shall be marked "Estimated".

© The solicitation shall advise the contractor that once the estimated quantities for

individual line items shown in the Schedule have been ordered, additional quantities may be

ordered as long as the overall not-to-exceed (NTE) amount of the contract per year is not

exceeded and the contractor agrees by signing the task order.

5252.216-9310 COMBINATION FIRM FIXED-PRICE/INDEFINITE QUANTITY CONTRACT (MAR 2002)

(a) This is a combination firm fixed-price/indefinite quantity contract for the supplies or

services specified, and effective for the period stated in the Schedule and any accompanying

exhibits. Work items for the fixed-price portion are identified in the Schedule and any

accompanying exhibits and include all work except that identified as Indefinite Quantity. The

fixed-price quantities shown in the Schedule and any accompanying exhibits are considered to

be accurate estimates for this contract period.

(B) Work items for the indefinite quantity portion of the contract are identified in the

Schedule and any accompanying exhibits. The quantities of supplies and services specified in

accompanying exhibits and the Schedule as Indefinite Quantity are estimates only and may be

ordered by issuance of separate task orders.

© Delivery or performance shall be made only as authorized by orders issued in

accordance with FAR clause 52.216-18. Contractor shall furnish to the Government, when and if

ordered, the supplies or services specified in the Schedule and any accompanying exhibits up

to the contract stated maximum. The minimum guarantee of work to be ordered is the firm

fixed-price portion of the contract.

(d) Except for any limitations on quantities in FAR clause 52.216-19, in the Schedule, and in

any accompanying exhibits, 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.

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. (End

of clause)

5252.216-9313 MAXIMUM QUANTITIES (JUN 1994)

As referred to in 5252.216-9310, "COMBINATION FIRM FIXED-PRICE/INDEFINITEQUANTITY

CONTRACT" clause, the minimum guarantee of work is the firm fixed-price portion

of the contract. The maximum dollar value of the contract is the total dollar value of the fixedprice

and indefinite quantity Items. The maximum shall not be exceeded except as may be

provided for by formal modification to the contract. (End of clause)

Share this post


Link to post
Share on other sites

TAP-

The mere fact that a modification may increase the maximum dollar value of the contract does not, in and of itself, make it "out of scope" and subject to FAR 6.302. There are other potential reasons for such a modification that could be within the scope of the contract. You need to consider the reason for the modification before you can tell whether it is wihtin the scope of the contract or not.

Share this post


Link to post
Share on other sites

Interesting question. The most interesting quote from the clauses is this one, from the second clause:

The maximum shall not be exceeded except as may be provided for by formal modification to the contract.

Thus, the author(s) of the clause thinks that "formal" modifications do not count against the contract maximum. On what basis did he, she, or they reach that conclusion?

FAR 16.504(a)(4)(ii) says that an IDIQ contract must specify the mazximum quantity of supplies or services the government "will acquire" under the contract. Note that it says, "will acquire," not "will order." The clause at FAR 52.216-22, Indefinite Quantity, says, at paragraph (B):

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."

FAR 16.504(a) says that the maximum may be stated in terms of a number of units or as dollar values.

Suppose that an IDIQ contract for services stipulates a maximum of $10 million and hourly labor rates. The rates are to be used to establish firm-fixed prices for task orders. Suppose further that the Government issues ten orders intially worth $1 million each, for a total of $10 million. Now suppose that the government decides that it wants to change one or more of the orders in ways that would increase their prices. Questions:

1. Is the contractor obligated to accept the changes in light of the fact that the indefinite quantity clause says that the contractor's obligation is limited to the $10 million maximum?

2. If the contractor were willing to agree to an increase of the maximum, would such an increase be subject to protest pursuant to FAR 16.505(a)(9)(i)(A)?

3. If the government issues changes that increase the prices of orders before the maximum is reached, should the value of the changes be counted against the maximum, such that the government is thereafter limited in terms of how much more it can order?

Is the maximum the maximum that may be ordered under the ordering clause, or is it the maximum that may be acquired. Is "acquire" synonymous with "order," or does it include modifications of orders? Check out the definition of "acquisition" in FAR 2.101.

Those are fun questions for which I have no supportable answers. Have I missed something in FAR? I have not checked for case law.

Share this post


Link to post
Share on other sites

OK, I guess I should have been more specific. I'm asking about a modification that would increase the IDIQ amount by either increasing quantities or adding IDIQ line items to the schedule.

Thanks!

Share this post


Link to post
Share on other sites
OK, I guess I should have been more specific. I'm asking about a modification that would increase the IDIQ amount by either increasing quantities or adding IDIQ line items to the schedule.

Thanks!

Out of scope. End of story.

Share this post


Link to post
Share on other sites

Vern,

Yes, that's what I thought as quantity is not one of the items listed in the changes clause. But it seems that with other contracts you can bi-laterally change pretty much anything that's within the general scope of the contract. Per NFAS higher level approval is required when a mod will double the original price of the contract. I realize better acquisition planning would have provided more realistic IDIQ quantities, but now I'm stuck administering a ten-year $200+M contract that doesn't meet customer's needs and I have no way to fix it?

Thanks!

(3) Level III contracting officer approval is required when the price of a modification will

exceed the original contract price or when the sum of the modifications issued to date, together

with the one proposed, exceeds the original contract price. This approval is not required for

utility service contracts with approved tariffs.

Share this post


Link to post
Share on other sites
Vern,

Yes, that's what I thought as quantity is not one of the items listed in the changes clause. But it seems that with other contracts you can bi-laterally change pretty much anything that's within the general scope of the contract. Per NFAS higher level approval is required when a mod will double the original price of the contract. I realize better acquisition planning would have provided more realistic IDIQ quantities, but now I'm stuck administering a ten-year $200+M contract that doesn't meet customer's needs and I have no way to fix it?

Thanks!

(3) Level III contracting officer approval is required when the price of a modification will

exceed the original contract price or when the sum of the modifications issued to date, together

with the one proposed, exceeds the original contract price. This approval is not required for

utility service contracts with approved tariffs.

TAP,

Additional levels of approval above the CO have nothing to do with whether a change is in scope or not. With your IDIQ contract, the competition and resulting contract award was based on quantities/needs ranging from the minimum up to the maximum. In other words, the offerors competed for a contract within those boundaries. You can't later go back and increase the quantity without a JOFOC and complying with FAR part 5.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×