IDIQs, Excusable Delays, and the Changes Clause

[ji20874]

Don makes a good point that the clauses grant the contractor the right to an adjustment, but that the parties may often agree to an adjustment without invoking the clause.

[Philistines]

In spirit and in personal practice, I am in complete agreement with Don that we should manage contracts in a way that the government gets its needed requirements in a reasonable way without disadvantaging any of the parties including those who lost the initial competition. Simply put, do what makes sense for the government  without screwing anybody over. Another good rule - If the FAR does not say NO, then it must mean YES.

Unfortunately, living in a litigious society, legal counsel will often advise a party to do things that are not necessary simply to insure legal protections against a potential future liability such as putting a warning label that says 'Contents Hot' on a cup that is also labelled 'Hot Chocolate'. A better world it would be if we were left to our own devices to learn that Hot Chocolate is indeed Hot. (But what would we do with all the empty courthouses?)

[Retreadfed]

38 minutes ago, Philistines said:

legal counsel will often advise a party to do things that are not necessary simply to insure legal protections against a potential future liability

The operative word in this phrase is "advise."

[ji20874]

Retreadfed,

In some organizations, attorneys effectively have absolute veto power over contracting officers -- that's just reality.

[Philistines]

ji20874 - Yes, they do. It's called a clearance (Is it legal?) but it sure looks like an approval (Should you do it?).

[formerfed]

There are a few agencies where only attorneys have warrants.  In many agencies requiring review and approval prior to award, prior legal review is a requirement before they look at an action.  One can’t usually get their approval by overriding or ignoring legal “advice.” 

[C Culham]

16 hours ago, ji20874 said:

attorneys effectively have absolute veto power over contracting officers

 

14 hours ago, formerfed said:

There are a few agencies where only attorneys have warrants.

 

15 hours ago, Philistines said:

It's called a clearance (Is it legal?)

Ergo the problem. 

In this thread Philistines has presented the idea of using clauses to support extension of IDIQ's whose performance period has been affected by agency action (inaction?) due to the pandemic concentrating on use of certain contract clauses.  Advice has been provided where clause use may not be appropriate coupled with advice regarding avenues where such extension could be accomplished without use or the demand of a contract "clause".   Advice in my view that is sound and based on sensible and acceptable principles supported by both the FAR and case law where no statute, executive order or regulation stands in the way save as noted the possibility that a regulation requires legal review or has bestowed a warrant on legal counsel.

The advice is in vein unless Philistines takes on the monumental task of advising, counseling and to an extent insisting that the assumed blockage - legal counsel -  understands the principles of contracting as noted.  Sorry to be so blunt here but the Philistines of the world may actually be the road block and not the legal counsel in that the Philistines go along with the risk assessment rather than promoting that even in the light of a potential risk - a protest in this case - done right and under the right circumstances the extension of the IDIQ's might be fulfilled without the absolute risk of a protest being successful.  Yep filed maybe but not successful.

 

"The purpose of defining the Federal Acquisition Team (Team) in the Guiding Principles is to ensure that participants in the System are identified beginning with the customer and ending with the contractor of the product or service. By identifying the team members in this manner, teamwork, unity of purpose, and open communication among the members of the Team in sharing the vision and achieving the goal of the System are encouraged. Individual team members will participate in the acquisition process at the appropriate time."

[joel hoffman]

Putting this thread back into perspective...

Several ID/IQ contracts ordering periods are expiring. The government has been unable to prepare follow on contracts. KO wants to extend the ordering.periods Of the existing IDIQ’s.

these actions are not changes under the changes clause. These actions are not excusable delays on the part of contractors.

These extensions would require out of scope supplemental agreements, pursuant to FAR Part 6 exceptions to full and open competition. you have said that the cause is due to the current COVID-19 pandemic, preventing the agency from competing new ID/IQ contracts.

Considering the fact that the government is trying to be very proactive concerning taking actions in response to the COVID-19 pandemic, my recommendation is to justify it based upon those impacts.

If your agency counsel doesn’t agree, tell them to solve the problem.

 

[Philistines]

Joel - We don't really have any issue with J&As. I hate doing them when other options exist. The main challenge with the orders is that we are struggling to estimate costs and requirements for implementation given all the unknowns ahead regarding the work environment.

C Culham - I suppose.  A lot of agencies have policies requiring clearances on J&As, requirement statements, funding, and bathroom passes. I could go once more into the breach and again and again while pointing out how certain policies increase workload, add no value, and reduce no risk. Have done it many times. But at the end of the day, I need to get the work done so I play the hand I am dealt.

[formerfed]

On 7/17/2020 at 4:58 PM, ji20874 said:

If the contracts are important to your agency's mission, then your attorneys and everyone else should eagerly help you get the J&As done -- you shouldn't have to fight them.  Just tell your agency executives now that you want to extend the ordering periods but your attorneys refuse to let you, and that the contracts will die soon.

This makes perfect sense.  Don’t try to find other ways to extend that just aren’t proper.  If the contracts are important, tell your management what’s going to happen if they don’t get extended.  Also if they are important, your user program offices should be able to come up with estimates for your J&A quickly (a few days).  A J&A can be processed for critical needs in a few days.  You may have to post in beta.SAM but your rational seems self evident and interested companies know they will soon get a shot at a competitive award soon. 
The alternative is do the competitive follow on quickly. If requirements haven’t changed much, issuing a solicitation shouldn’t take that much time.  Get your management involved and get all stakeholders - legal, policy, reviewers/approves, program offices including technical personnel lined up.  

[joel hoffman]

Ran across this old thread this morning while browsing on-line users:

Inasmuch as Vern Edwards and others weighed in on the topic, it might be helpful here to answer the original questions. It doesn’t tell you what you CAN do as an alternative to the OP’s original question.

An alternative is an out of scope supplemental agreement, citing the delay due to corona virus preventing timely recompetition. Use An appropriate FAR Part 6 exception to full and open competition (e.g., 6.302-2),  as well as recent government policies in response to impacts of COVID-19 that would seemingly overcome objections due to “lack of planning”.  Get the lawyers to creatively write the details. Let them practice what they learned in law school to be able to argue either side of the same case.

EDIT: Ive seen some very creative justifications used for “urgent and compelling” circumstances without any industry objections, but those were for construction ID/IQ’s and single awards, not services. To quote Thomas Paine, “These are times that try men’s souls.”

http://www.thisdayinquotes.com/2011/12/times-that-try-mens-souls-summer.html?m=1

Edited July 29, 2020 by joel hoffman

[joel hoffman]

Of course, the periods of performance for any open or new task orders should be very carefully limited only to anticipated time required to award replacement contracts and task orders...