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We are having an issue with a contractor it seems they want to refuse the acceptance of a Task Order.  I requested a proposal which I believe I don't have to do because everything is already negotiated and I'm just ordering the quantity so I feel like this is a just a formality that I don't have to do go through but I'm not the contracting officer, so i'm doing what I'm told.  The contractor was expecting the maximum values and its effecting the bottom line despite the government exceeding the minimum quantity of the Task Order value and the overall IDIQ minimum.  They simply undercut themselves so they said they don't want to provide a proposal.  I feel the next step is to send them Task Order and see if they refuse to perform.  Can they refuse to accept a Task Order under a single award IDIQ?  I have never been in this situation before.   

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5 hours ago, 1102allday said:

Can they refuse to accept a Task Order under a single award IDIQ?

Is this the question you intended to ask?  If it is, the answer is Yes in certain circumstances.  If you intended to ask if the contractor can refuse to accept the order given the facts you have stated, then I agree with Don.

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“52.216-22 Indefinite Quantity

b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. 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. The Government shall order at least the quantity of supplies or services designated in the Schedule as the minimum.”

“52.216-18 Ordering.

As prescribed in 16.506(a), insert the following clause:

Ordering (OCT 1995)

(a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from ___ through ___ [insert dates].

(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.

(c) If mailed, a delivery order or task order is considered “issued” when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule.

(End of clause)

[60 FR 49727, Sept. 26, 1995]”

The answer to the original question may also depend upon any other contract terms and conditions concerning the ordering process. 

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So, to see if I understand this correctly:

Contrator has an IDIQ with fixed prices and is the only contractor on the IDIQ.   The contract states minimum TO value and an overall minimum IDIQ value.   It very likely also has a maximum value.

Post-award, the Government now has a requirement that will be in excess of the minimum TO value and the minimum IDIQ value.   The contracting folks are suggesting that a proposal be requested (and the contractor's response be evaluated) vs. simply issuing a TO.  

The contractor is declining to respond to the request for a proposal.   There's a presumption here that lower pricing is expected, and certainly there will be an effort (cost) on the part of the contractor to deliver a proposal, even if the pricing isn't lowered.  

While there has been signaling from the contractor that a proposal would not be delivered, there has been NO indication that they wouldn't accept a straight task order against the contract (terms and conditions) as awarded.

Do I have that right? 

 

If so, this seems simply like the contractor is saying "look, I already wrote a proposal and gave a price when I won the IDIQ.   If you like what's offered in the IDIQ then take it as-is. I'm not going to negotiate against myself.  If you don't like it, issue a solicitation elsewhere with more open competition."   I see no indication that they won't perform under their contract as awarded, rather, I see a refusal to negotiate BEYOND the awarded contract.   This seems to be in-line with the clauses Joel Hoffman has quoted.   

Now, if the contractor is issued a TO that's under the IDIQ maximums, is for the prices and terms in the IDIQ and otherwise is proper per 52.216-22, then yes, I'd expect the contractor to deliver on that TO and to be in breech if they don't.   

Does the IDIQ have any provisions for TO-level RFPs, continued negotiations or otherwise?   I'd guess not (though I don't know) and the contractor is simply saying "we don't want to dance again, we already danced."

On the contractor side, the computation for the pricing needed to win an IDIQ includes factoring in if there will be continued negotiation, competition or other price pressures post-award.   If there is not any post-award changes to the pricing, and if it is winner-take all, then the contractor may very well have put their bottom-line pricing out there, and there's no interest in spending the money to create a proposal, let alone to adjust pricing.    The irony here is that if the requirements went away from this IDIQ and were openly competed, the Govt may in fact pay a higher price than they would have under the existing IDIQ (since the cost of responding to an RFP for a single opportunity has to be factored in).   Maybe not...but it is the chance the Govt takes here.   

The competition already happened with the IDIQ award.   The Govt should either buy from the contractor's IDIQ or go do a real competition outside the IDIQ.   

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5 hours ago, jayandstacey said:

So, to see if I understand this correctly:

Contrator has an IDIQ with fixed prices and is the only contractor on the IDIQ.   The contract states minimum TO value and an overall minimum IDIQ value.   It very likely also has a maximum value.

Post-award, the Government now has a requirement that will be in excess of the minimum TO value and the minimum IDIQ value.   The contracting folks are suggesting that a proposal be requested (and the contractor's response be evaluated) vs. simply issuing a TO.  

The contractor is declining to respond to the request for a proposal.   There's a presumption here that lower pricing is expected, and certainly there will be an effort (cost) on the part of the contractor to deliver a proposal, even if the pricing isn't lowered.  

While there has been signaling from the contractor that a proposal would not be delivered, there has been NO indication that they wouldn't accept a straight task order against the contract (terms and conditions) as awarded.

Do I have that right? 

 

If so, this seems simply like the contractor is saying "look, I already wrote a proposal and gave a price when I won the IDIQ.   If you like what's offered in the IDIQ then take it as-is. I'm not going to negotiate against myself.  If you don't like it, issue a solicitation elsewhere with more open competition."   I see no indication that they won't perform under their contract as awarded, rather, I see a refusal to negotiate BEYOND the awarded contract.   This seems to be in-line with the clauses Joel Hoffman has quoted.   

Now, if the contractor is issued a TO that's under the IDIQ maximums, is for the prices and terms in the IDIQ and otherwise is proper per 52.216-22, then yes, I'd expect the contractor to deliver on that TO and to be in breech if they don't.   

Does the IDIQ have any provisions for TO-level RFPs, continued negotiations or otherwise?   I'd guess not (though I don't know) and the contractor is simply saying "we don't want to dance again, we already danced."

On the contractor side, the computation for the pricing needed to win an IDIQ includes factoring in if there will be continued negotiation, competition or other price pressures post-award.   If there is not any post-award changes to the pricing, and if it is winner-take all, then the contractor may very well have put their bottom-line pricing out there, and there's no interest in spending the money to create a proposal, let alone to adjust pricing.    The irony here is that if the requirements went away from this IDIQ and were openly competed, the Govt may in fact pay a higher price than they would have under the existing IDIQ (since the cost of responding to an RFP for a single opportunity has to be factored in).   Maybe not...but it is the chance the Govt takes here.   

The competition already happened with the IDIQ award.   The Govt should either buy from the contractor's IDIQ or go do a real competition outside the IDIQ.   

 

On 3/5/2020 at 4:59 AM, joel hoffman said:

The answer to the original question may also depend upon any other contract terms and conditions concerning the ordering process. 

Exactly. 

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jayandstacey,

I think you are reading too much into what the OP said.  He just stated there’s an IDIQ contract and prices already negotiated.  He’s requesting a proposal because he was told to but doesn’t see a need.  The contractor announced they weren’t going to submit a proposal and the question is can the contractor refuse to accept a task order?  The implication is the contractor based pricing on receiving the max and orders aren’t close and doesn’t want to participate any longer with the contract.

The OP hasn’t been back to provide more info but generally when this happens a contractor did it from one of these reasons:

1. Doesn’t understand the IDIQ contract process

2. Felt considerable competition pressure and chose to bid low

3.  Received information, either written or verbal, indicating purchasing would be greater.

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11 hours ago, formerfed said:

I think you are reading too much into what the OP said.  He just stated there’s an IDIQ contract and prices already negotiated.  He’s requesting a proposal because he was told to but doesn’t see a need.  The contractor announced they weren’t going to submit a proposal and the question is can the contractor refuse to accept a task order?  The implication is the contractor based pricing on receiving the max and orders aren’t close and doesn’t want to participate any longer with the contract.

Well, yes, that's one implication and now that I've re-read the OP, I can definitely see that.   Mine's another implication, that the Contractor is being asked to submit proposals when there is a contract already in place that doesn't require such.    

(NB: The fact that it is an IDIQ and we're discussing a single task order leads me to my conclusion...that I can't believe that even the most clueless contractor would expect the entire IDIQ value to be consumed in a single TO, or even close to it....but much stranger things have happened...)

At the root is who do we think is more in the wrong here - the govt or the contractor?   

Until the OP returns and provides clarity, we may never know!   :)

 

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It was a simple question which was answered. 

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14 minutes ago, jayandstacey said:

Terrific.   Thank you Joel.  

 

46 minutes ago, joel hoffman said:

It was a simple question which was answered. 

Jay, I only said that because the OP appears to have last visited the thread Thursday morning and didn’t respond to any questions, so is probably satisfied with the responses up to that time. 

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