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FARmer

Clause Flow Down- Master Contract to Orders etc

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Hey Folks, I am working on a rather large project for my agency and there has been several discussions in which there has been no end to with regards to clauses that flow down to orders placed under a Schedule, GWAC, IDIQ, or BPA etc. The discussion goes further into the provisions as well. I have scoured the internet and this forum and i'm able to piecemeal information pertaining to this topic but was wondering if there were any blogs, GAO cases, white papers that discuss clause flow down from the master contract to the orders placed under the master contract. A lot of the discussions I am finding are specific to clause flow down from a prime contractor's contract to the subcontractor, and I want to be clear that this is not what I am seeking or related to what I am researching. Anyone know of any good reads related to clause flow down from the master contract to the order placed under the master contract?

As an example of what I am facing, one discussion was around an MA/IDIQ contract that contains the clause 52.217-9, Option to Extend the Term of the Contract.  Besides the point that the IDIQ contract does not have any options but has the appropriate ordering period clauses filled out, does this clause "flow down" to the order placed under the IDIQ if omitted completely from the Order? The order is a 5 year contract with an option that needs to be exercised each year for performance to continue. Taking inconsideration everything that I have read and based on my understanding,  if there is a clause that needs to be tailored (i.e. clause that require the CO to fill in the blanks), the clause does not flow down as the clause needs to be tailored specifically for that order. So in this circumstance, 52.217-9 does not flow down from the IDIQ contract to the order but other clauses  such as a clause like FAR 52.202-1, Definitions, does flow down and is not required to be in the order level contract.

Another part of the discussion is around FAR provisions. Do these flow down as well? For instance FAR 52.216-1, Type of Contract. 

There are two sides to this discussion. One side is those that believe the order under any IDIQ, Schedule, GWAC, and or BPA do not need to have any clauses or provisions. The other side believes that it depends on the provision/clause and its applicability to the actual order. 

 

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It's not really a matter of "flowdown," which is a term used for subcontracts.

Every order issued under an IDIQ contract is subject to the terms of that contract. See FAR 52.216-18, paragraph (b):

Quote

(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

That's the standard clause that specifies the general rule.

There is no clause that specifies a general rule for IDIQ contracts under which orders of various types may be issued to which various clauses apply. If the contract is written to permit the issuance of various orders to which various clauses apply, then the contract should state how clauses are to be assigned to the various orders and how contractors are to be informed of which clauses apply. If the contract is sloppily written and does not so state, then you'll have to ask the contracting officer or figure it out on your own. That will take some know-how.

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Thanks Vern! 

1 hour ago, Vern Edwards said:

Every order issued under an IDIQ contract is subject to the terms of that contract. See FAR 52.216-18, paragraph (b):

That's the standard clause that specifies the general rule.

This is how I go about building an order off of a GWAC, Schedule, IDIQ or BPA. I do not see it beneficial to add every clause under the sun to an order/task order if its already covered under the contract.  With regards to the last paragraph of your statement, that is exactly what I am dealing with within my agency and tasked with helping educating folks. 

1 hour ago, Vern Edwards said:

There is no clause that specifies a general rule for IDIQ contracts under which orders of various types may be issued to which various clauses apply. If the contract is written to permit the issuance of various orders to which various clauses apply, then the contract should state how clauses are to be assigned to the various orders and how contractors are to be informed of which clauses apply. If the contract is sloppily written and does not so state, then you'll have to ask the contracting officer or figure it out on your own. That will take some know-how.

Most of our task orders are written off of the GSA GWACs and Schedules, and those task orders normally have clauses that shouldn't be in the order because its covered by the contract and/or have clauses that were omitted because someone doesn't know what they are doing. For this example, I am going to point back to the GSA Alliant Contract...... I usually get caught in discussions where a clause, for example FAR 52.217-9 (that is required to be filled in and annotated as needing to be filled out by the OCO within the contract), is nowhere to be found in the solicitation or order itself. The Ordering CO's argument is "I don't have to have it in my task order because its in Contract....." Well per the Alliant contract the OCO is required to fill in any clause on the Alliant contract that has an "*", its clearly annotated in the Alliant contract and 52.217-9 is one of those clauses.  But if a CO awards a task order and did not follow instructions (happens all to often) how does FAR 52.216-18 cover the CO in this situation when FAR 52.217-9 has not been incorporated into the task order. In my opinion, I would say that the 52.217-9 clause contained in the Alliant contract does not cover the task order because at the Alliant contract level that clause isn't filled in to provide the contract holder any details on the stipulations of the clause and that the Alliant contract specifically states the clause must be filled in if applicable.

What about FAR provisions. For instance, would the FAR provisions used during the solicitation of the Alliant GWAC  have to be inserted into the solicitation of a task order? I think the answer really depends on what the provision is i.e might be a new provision in the FAR that wasn't in the FAR when Alliant was solicited and/or a provision that requires some kind of fill-in.

 

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18 minutes ago, FARmer said:

What about FAR provisions. For instance, would the FAR provisions used during the solicitation of the Alliant GWAC  have to be inserted into the solicitation of a task order?

No, unless the Alliant contract expressly requires it for some reason.

18 minutes ago, FARmer said:

Well per the Alliant contract the OCO is required to fill in any clause on the Alliant contract that has an "*", its clearly annotated in the Alliant contract and 52.217-9 is one of those clauses.  But if a CO awards a task order and did not follow instructions (happens all to often) how does FAR 52.216-18 cover the CO in this situation when FAR 52.217-9 has not been incorporated into the task order[?]

I have not read the Alliant contract, and I don't know the answer. Ask the Alliant contracting officer.

 

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