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FAR adds required Clause after contract award -Must you modifiy the Contract?

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I think the Forum has had this discussion before but could not find it.  IDIQ contract is awarded in 2013, new mandatory clause is added to FAR in 2014, is it mandatory to modify the contract to add the clause?  If not added to the IDIQ, does each delivery order issued after the effective date of the clause need it added?   An outside oversight agency is indicating that we are wrong if we did not add it to either the base contract or the delivery orders.  

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Thanks Vern.  Now we get to the definition of solicitation.  I think a request for proposals amoung mutltiple IDIQ contractors would be considered a solicitation (correct me if I am wrong).  So at that point we would have to include the clause according to  1.108(d)(1).   However, the contractors never agreed to it when the IDIQ contract was awarded.  I suppose the award of a task order would be consideration. 

So should an oversight agency say we are in non-complaince for the delivery order not having the clause in it? 

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Boof, based on FAR 52.216-18, I think the oversight agency is off base.  The DO is subject to the terms of the base contract, not unique terms applicable to each individual order.

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See FAR 52.216-18(d). You put FAR clauses in the solicitation for the IDIQ contract and in the resulting contract, and those clauses apply to the orders issued under the contract. You do not add FAR clauses to individual orders in the course of time. The oversight agency is wrong. 

IDIQ contracts have created a lot of confusion, because in multiple-award contracting orders are often treated as contracts-within-contracts and are subject to the "fair opportunity" rule, which leads people to think that each order is a new procurement. But an order is not a new procurement and is not subject to CICA rules unless it is beyond the scope of the contract under which it has been issued. See FAR 6.001(e) and (f). Confusion is also caused by the absurd definition of "contract" in FAR 2.101.

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Boof, 

FAR 1.108(d) begins with "Unless otherwise specified--". The place where this would be specified would be in the Federal Acquisition Circular that the clause appeared in. It's rare, but sometimes the FR notice will say that no new orders can be issued or options exercised unless the new clause is incorporated in the contract. This usually happens when Congress places restrictions on a specific appropriation (e.g., no FY16 funds shall be paid to a contractor with an delinquent tax liability). Do you mind telling us which clause you're asking about?

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The clause is FAR 52.203-17 about contractor whistleblower protections. (FAR 3.908 pilot program).  GAO is doing a multi agency study on how much we are using it.  They provided a list of sample actions off FPDS (mostly delivery orders) for us to inform if we have the clause in them or not.  Many of the IDIQs were before April 2014 when the clause was added.  .

Thanks for the advice.

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That clause implements 41.U.S.C. 4712.  That statute does not require the FAR Councils to promulgate a clause.  Instead, it requires the head of each individual agency to "ensure that contractors, subcontractors, and grantees of the agency inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce."  It seems that this obligation on the part of the agency head exists regardless of whether there is a contract clause implementing the statute.  Also, the statute seems to apply to any contract or grant, not just those awarded after the statute was passed.  This seems like a matter of statutory interpretation that you should take up with agency lawyers.

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