Mod an Active TO on Expired IDIQ

[telms]

I have a task order that was awarded off an IDIQ contract. The IDIQ has since expired and my CO insists no changes, modifications, or follow-ons can be written against the TO because the IDIQ is expired. Is that true?

[C Culham]

Try these already in WIFCON to see if you can answer your own question....

http://www.wifcon.com/discussion/index.php?/blog/2/entry-644-those-pesky-idiq-contracts-again/

http://www.wifcon.com/discussion/index.php?/topic/2005-new-work-modify-or-compete/

[Guest Vern Edwards]

I have a task order that was awarded off an IDIQ contract. The IDIQ has since expired and my CO insists no changes, modifications, or follow-ons can be written against the TO because the IDIQ is expired. Is that true?

The regulations provide no answer to the question. You have to look to the terms of the IDIQ contract, the task order itself, and to contract law in general.

Your CO is wrong if he claims that statute or regulation precludes modification of a task order after the underlying IDIQ contract has expired.

The IDIQ contract authorizes the issuance of orders. You cannot issue a new order against it once it has expired.

Contractually, a task order is a contract in its own right and contains all the clauses that were in the IDIQ contract. It does not "die" with the contract. It has a life of its own and expires pursuant to its own terms. Once it has been issued the parties can do anything to it that they could do to any other contract. They can make within scope changes to it or terminate it for convenience, add or delete GFP, or anything else.

However, the CO would need authority to add new work through out of scope changes, meaning changes beyond the scope of the order itself. Since the IDIQ contract has expired, the CO could not add new work pursuant to its terms, so the CO would have to have a J&A.

[telms]

Thanks Vern, that was very helpful.

[telms]

However, the CO would need authority to add new work through out of scope changes, meaning changes beyond the scope of the order itself. Since the IDIQ contract has expired, the CO could not add new work pursuant to its terms, so the CO would have to have a J&A.

One thing. If I read the last paragraph correctly, I can award new work on this TO, with the expired IDIQ, as an LFO according to the requirements for Indefinite Delivery contracts as long as it is justified and approved. Right?

[ji20874]

[deleted]

[i deleted my question because I figured it out = LFO is logical follow-on]

[telms]

ji20874, what could make it clearer?

[Don Mansfield]

LFO?

[telms]

Logical Follow On

[telms]

What I am hoping is someone can specifically tell me if I can use this FAR Subpart for new work under an active Task Order even though the Indefinite-Delivery-Indefinite-Quantity contract is expired. That is provided I can justify and get approval for the work. My Contracting Officer says no, I disagree.

16.505 Ordering.

(2) Exceptions to the fair opportunity process.

(iii) The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.

[ji20874]

You need to read the IDIQ contract -- what I call the parent contract -- and you need to read it as a whole. Vern explained this above.

We don't know if your contract is one for commercial items (with the contract clause at FAR 52.212-4), or not. If it is, we don't know if you tailored the language in that clause regarding changes in para. ( c ). You know the answer; we don't.

It seems the period for issuing orders has expired -- but we don't know what your contract says about the period of performance for already-issued orders. You know the answer; we don't.

The authority you cite [is it supposed to be FAR 16.505( b )( 2 )( i )( C )?] allows you to issue a new order as a logical follow-on, but the ordering period for your contract has ended -- so you CANNOT issue a new order EVEN IF the conditions for a logical follow-on really exist.

So it seems you cannot issue a new task order pursuant to FAR Subpart 16.5. Your contracting officer might be right in this matter. Since you yourself identify the new work as new work, why not follow the rules for new work?

Vern mention a J&A above. With a J&A, you can modify an existing contract (or task order?) to add new work -- you can do almost anything with a J&A. If your contracting officer won't support a J&A, well, your burden is harder. But why try to justify the exception? Why not follow the rules for new work?

[illzoni]

The expired status of the IDIQ doesn't affect what you can/can't do with the TO.

Logical follow-on doesn't justify modifying an existing instrument to avoid preparing a new instrument. As the word "economy" from your 16.505 quote only appears once in all of Part 16, at:

16.505

( Orders under multiple-award contracts--

(2) Exceptions to the fair opportunity process.

(i) The contracting officer shall give every awardee a fair opportunity to be considered for a delivery-order or task-order exceeding $3,000 unless one of the following statutory exceptions applies:

© The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.

A new TO may be justificed, but the IDIQ has expired. You want to improperly modify the existing TO instead of cutting a new TO.

[telms]

Seems I'm only half right. I can do a mod, if warranted, but new work is out of the question.

Thanks to everyone for the assist.

[Guest Vern Edwards]

What I am hoping is someone can specifically tell me if I can use this FAR Subpart for new work under an active Task Order even though the Indefinite-Delivery-Indefinite-Quantity contract is expired. That is provided I can justify and get approval for the work. My Contracting Officer says no, I disagree.

Yes, you can tack the new (out-of-scope) work onto the existing task order document that was issued under a now-expired IDIQ contract.

But if the work is new (out-of-scope), then you will have to conduct a new procurement. You will need all of the documentation required for a new procurement. You will need to put the new work under a separate task order line item segregated from the expired IDIQ contract and the existing task order work. You will need to apply all of the contract clauses applicable to the new work line item.

In light of those facts, why add the new work to the existing task order, even if you can do it? It would be stupid. Just prepare a new contract document for the new work.

Is that answer clear enough? Do you need to know more?

[telms]

It's clear. And the only reason I would want the current firm do the new work would be for design continuity. These are park exhibits and a lot of research has gone in to the design already. To add a room or exhibit to the existing design would be a major duplication of effort on everybody's part. Not just the new firm, but the team of reviewers as well.

[illzoni]

The decision to mod the existing TO or do a new contract instrument doesn't change the documentation you should include (e.g. the justification). If your justification is good enough to warrant the mod, it's good enough for the new contract.