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There has been some back and forth in my office regarding whether clauses included in task orders have to be in the basic contract and I'm unable to find anything that specifically speaks to this, so I'm beginning to think I've been wrong in my assumptions all these years. 

I was taught many moons ago when I was learning contracting that in order for a clause to be inserted into a task order that it also had to be included in the basic contract and if it wasn't, that the basic contract needed to be amended before it could be included in a task order. 

Has anyone else "grown up" under this assumption and if so do you have a reference of where this is specified? 

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Generally, if a clause is in the parent indefinite-delivery contract, it applies to all orders against that contract — the clause need not be repeated in the order.

Sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.  This is seen as okay because there is a competition for the order, and contract holders can submit offers based on the new clauses.

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2 hours ago, ji20874 said:

Sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.  This is seen as okay because there is a competition for the order, and contract holders can submit offers based on the new clauses.

I don't see it the same way. It would be helpful if some commenters could provide some regulatory and process discussion. At the moment I have no regulatory citations.  My reaction is the "parent" IDIQ contract is the only fair contract terms and they should not be altered by an order. Supposing the notice for an order significantly changed the terms and conditions of the "parent" to the point where some of the initially competitive bidders were no longer competitive? Should terms and conditions also be permitted to be deleted by a fair opportunity notice? What if some initial bidders were found to be non-competitive, are they excluded from the fair opportunity notice? What if the proposed added or deleted terms and conditions, given a chance, would make them competitive?

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55 minutes ago, Neil Roberts said:

I don't see it the same way. It would be helpful if some commenters could provide some regulatory and process discussion. At the moment I have no regulatory citations.  My reaction is the "parent" IDIQ contract is the only fair contract terms and they should not be altered by an order. Supposing the notice for an order significantly changed the terms and conditions of the "parent" to the point where some of the initially competitive bidders were no longer competitive? Should terms and conditions also be permitted to be deleted by a fair opportunity notice? What if some initial bidders were found to be non-competitive, are they excluded from the fair opportunity notice? What if the proposed added or deleted terms and conditions, given a chance, would make them competitive?

Neil, I believe that 52.216-18(b) addresses your concerns about a change in an order that conflicts with a term in the parent IDIQ.

MCP,

see the same paragraph of the above referenced clause. Assuming this clause is in the IDIQ, it invokes all terms and conditions (including all clauses) in the parent IDIQ in all orders placed under the contract. Therefore you need not reference the same clauses in the resulting delivery order

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1 hour ago, Neil Roberts said:

It would be helpful if some commenters could provide some regulatory and process discussion

I agree.

 

8 minutes ago, uva383 said:

52.216-18

uva is on the right track as long as -18 clause is in the parent contract.  Let's hope it is.  Further I would pose what does the contract allow about additional terms and conditions being added to a TO.   Silent, allows or disallows as per uva's reference in effect  an add would be potentially be  in conflict with a term or condition already in the parent.  A donot get me started on whether the addition of terms and conditions might in fact be a change in scope of the IDIQ.   Here I would just say what clauses OP?

4 hours ago, ji20874 said:

Generally, if a clause is in the parent indefinite-delivery contract, it applies to all orders against that contract — the clause need not be repeated in the order.

Nope not generally but  specifically if 52.216-18 is in the contract.  If not then I would leave to a CO to make it up but I do not like such an idea.

4 hours ago, ji20874 said:

Sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.  This is seen as okay because there is a competition for the order, and contract holders can submit offers based on the new clauses.

Lets play this out.  The parent IDIQ contract has 52.216-18, still okay?  What about single award versus multiple award since the OP has not stated which type of IDIQ?   In either case does not the contractor(s) have a right to deny the additional clauses and if so what is the outcome with regard to their TO offer if they do not state agreement to the new clauses?   

And finally just for the heck of it as the OP has not stated what clauses......

Bottom line for me not enough info and in the pure sense of federal contracting "generally" does not apply but "depends" does.

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2 hours ago, Neil Roberts said:

Supposing the notice for an order significantly changed the terms and conditions of the "parent" to the point where some of the initially competitive bidders were no longer competitive? Should terms and conditions also be permitted to be deleted by a fair opportunity notice? What if some initial bidders were found to be non-competitive, are they excluded from the fair opportunity notice? What if the proposed added or deleted terms and conditions, given a chance, would make them competitive?

File a protest under FAR 16.505(a)(10)(I)(A).  That is the proper recourse if a prospective offeror believes these things are happening and are unfair.

It is a simple fact that sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.

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1 hour ago, C Culham said:

Lets play this out.  The parent IDIQ contract has 52.216-18, still okay?  What about single award versus multiple award since the OP has not stated which type of IDIQ?   In either case does not the contractor(s) have a right to deny the additional clauses and if so what is the outcome with regard to their TO offer if they do not state agreement to the new clauses?  

A contractor may reject an order if it does not conform to the parent contract.

A contractor may accept an order that contains additional clauses.  If a fair opportunity notice adds clauses, a contractor can address the impact of those clauses in its offer, if it chooses to submit one.

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2 hours ago, Neil Roberts said:

It would be helpful if some commenters could provide some regulatory and process discussion. At the moment I have no regulatory citations.  My reaction is the "parent" IDIQ contract is the only fair contract terms and they should not be altered by an order.

It seems to me that para. (b) of the contract clause at FAR 52.216-18, Ordering, clearly allows for orders with terms and conditions in addition to those in the parent contract.

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10 minutes ago, ji20874 said:

It seems to me that para. (b) of the contract clause at FAR 52.216-18, Ordering, clearly allows for orders with terms and conditions in addition to those in the parent contract.

Correct, as long as they do not conflict with the parent IDIQ. Often it is necessary to add additional terms and conditions at the TO/DO level as they are specific to the work in the order where the parent IDIQ was more broad in nature to allow flexibility.

if the holder(s) of the parent IDIQ believe there is a conflict in the terms between the parent and an order. It should first point it out to the PCO, then if not resolved satisfactorily to the IDIQ ombudsman. It shouldn’t need to go higher than that to get the issue resolved, but if it does then a filing a protest may be necessary.

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Interesting discussion but I’m not sure how pertinent it is to many situations.  The bulk of orders with added clauses are agency/office specific requirements.  For example, the clauses pertain to security, building access,  pre-clearance of contractor personnel, and complying with CIO/IT methodologies and operating constraints. They are added when placing orders against other agency contracts like MACs, GWACS, and GSA Schedules.  Those contracts usually make it clear agency clauses can be added to orders as long as they don’t conflict.  For example, this is from GSAs website on FAQs

Quote

6. Am I authorized to include FAR clauses on Schedule task orders?
Answer: Yes, but the additional clause(s) cannot negate any existing term and condition of the Schedule contract. Agencies routinely add specific clauses about security, payment processes, extension process, and options.

When an agency does they own IDIQ contracts, they usually consider the agency variety of needs and include all applicable contracts in the contract.  If something new comes up, they modify the contract so orders don’t add other clauses.

EDIT:  ji20874 and uva posted while I was responding.  I agree with both their posts.

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An example could be a DoD agency order from a GSA schedule.  DoD is authorized to use such schedules but must comply with various DoD specific requirements.  

Same goes for other agencies using their ID/IQs for DoD. 

Recollection is that it is mandated by Statutes. For example see DFARS/ PGI for 208.4. 

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Management is requesting that I update the Master Agreement of the Requirements Contract to include all the latest FACs since the award of the contract in Jul 2018.  First off, it is a Multiple Award Task Order Contract (MATOC)...Contract not Agreement.  It is an IDIQ not a Requirements Contract.  I have never heard of updating clauses to a contract after award based on FACs, and I can find no requirement to do so.   I could understand updating and including specific clauses that should be added if required or needed.  He/she insists that the FAR and VAAR Clauses be updated based on FACS and any old clauses be rescinded.  Additionally, also out of my control, there are 49 Contract Holders.  I previously worked for DoD for 17 years.  I have been with the VA for a little more than 2 years.  I do not agree with this request.  The FAR is silent on this, but of course.  It isn't a requirement from my perspective.  Please advise.

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Is FAR 52.216-18 included in the contract? Have task orders already been issued? When does the current POP end? Is the update being requested to be applicable via Task Orders on or after a certain date or by change notice to the contract? Would you agree to send the Contract Holders a summary of the contemplated changes for comment about acceptance via a Request for Information? Do you have this management request in writing?

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18 hours ago, Charlotte Nelson said:

The FAR is silent on this...  

The FAR is not silent on this.  See FAR 1.108(d).

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10 hours ago, ji20874 said:

The FAR is not silent on this.  See FAR 1.108(d).

Hope you do not mind but I want to highlight the following -

FAR1.108(d)(3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.

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31 minutes ago, ji20874 said:

That's for the contractor to decide, right?

I think it is a matter of negotiation between the contractor and government.

 

8 minutes ago, C Culham said:

I always thought that with regard to contract law "consideration" is something of value. 

Carl, you are missing the relevant word in the FAR "appropriate."  The contracting officer and contractor may agree that no consideration is appropriate in a particular circumstance.

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On 12/18/2019 at 12:42 PM, Charlotte Nelson said:

I have never heard of updating clauses to a contract after award based on FACs, and I can find no requirement to do so.

Charlotte, would you agree that your management has discretion for initiatives that are not illegal or immoral, or done in bad faith or unreasonable, etc? 

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The only requirement to add or revise clauses is when legislation or Executive Order requires it.  Usually the implementing FAC provides instructions.  That’s one type of revisions.  Another category of clause changes is when it’s desirable and beneficial.  Finally there’s a third group which is just to keep everything current.

You are only required to do the first.  If your management wants to do the second and third, they must have a reason.  Why don’t you just sit down with them and ask?  Do it saying you are curious, want to better understand the office and working policies, and it’s for your knowledge and future contributions you can make to the office by seeing how things work and why.  Above all don’t be confrontational and say you’ve never done it before in all your years.

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16 hours ago, Retreadfed said:

Carl, you are missing the relevant word in the FAR "appropriate."  The contracting officer and contractor may agree that no consideration is appropriate in a particular circumstance

Retreadfed - Actually how about removing the parenthetical phrase and then the sentence reads as follows -

Contracting officers may include the changes in any existing contract with appropriate consideration.

 

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On 12/18/2019 at 2:42 PM, Charlotte Nelson said:

Management is requesting that I update the Master Agreement of the Requirements Contract to include all the latest FACs since the award of the contract in Jul 2018.  First off, it is a Multiple Award Task Order Contract (MATOC)...Contract not Agreement.  It is an IDIQ not a Requirements Contract.  I have never heard of updating clauses to a contract after award based on FACs, and I can find no requirement to do so.   I could understand updating and including specific clauses that should be added if required or needed.  He/she insists that the FAR and VAAR Clauses be updated based on FACS and any old clauses be rescinded.  Additionally, also out of my control, there are 49 Contract Holders.  I previously worked for DoD for 17 years.  I have been with the VA for a little more than 2 years.  I do not agree with this request.  The FAR is silent on this, but of course.  It isn't a requirement from my perspective.  Please advise.

Do these base contracts have priced line items? All? Most? Few? None? 

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8 hours ago, C Culham said:

Contracting officers may include the changes in any existing contract with appropriate consideration.

This still gives the contracting officer discretion as to what would be appropirate under the circumstances.

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