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With the issuance of the COVID DFAR clause, the Gov't is issuing bilateral mods to various DoD ID/IQ's, among other. There's a common belief by a number of KO's that issuance of a bilateral mod at the ID/IQ level naturally and automatically applies to all (Task) Orders issued thereunder. When pressed for the authority, the KO's tend to cite FAR 52.216-18 ( b ) Ordering or DFAR 252.216-7006( b )

There appears to be no evidence within this clause stating a modification at the ID/IQ level also constitutes a (bilateral or unilateral) modification at the (Task) Order level. I see only the authority to issue Orders themselves and a conflict provision. 

Wouldn't each Task Order have to be modified separately through a bilateral to include the newly minted DFAR clause? 

 

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I'm in the same boat as you.  The day of reckoning is on us - as contracting professionals we needed to know the answers to these questions yesterday.

What I have found applies to my GSA FSS orders only as decided by the SCOTUS, so I cannot help you with your stated circumstances being a Single-Agency IDIQ.  If you want any help with GSA contracts, let me know.  If not, I'll stand back and watch the experts of this forum help you.

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If you are a contractor, ambiguity about this matter is a good thing, because it may raise a defense against accusations about false claims.

If you are a CO, the ambiguity is easily avoided by expressly addressing the matter in the bilateral mod, stating that the contractor agrees not only to adding the clause to the underlying IDIQ contract, but also to all ongoing task orders.

Any CO who adds the clause to the contract and assumes that it applies to orders issued before the effective date of the mod is simply foolish.

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1 hour ago, WifWaf said:

I'm in the same boat as you.

 

57 minutes ago, Vern Edwards said:

Any CO who adds the clause to the contract and assumes that it applies to orders issued before the effective date of the mod is simply foolish.

It would seem that GSA agrees at least based on their direction which is as found at slide 17 of this -  https://www.gsa.gov/cdnstatic/COVID EO Protocols Industry Meeting Final_0.pdf   (emphasis added)

"Existing Orders against GSA IDIQ contracts ● COs shall review the contract’s T&Cs to determine whether FAR clause 52.223-99 has been incorporated. ● If the underlying contract has not been modified to include the clause, or the underlying contract has expired, the order-level CO shall modify the order (by bilateral modification) to include FAR clause 52.223-99 prior to exercise of the option period or extension"

And spinning back to the previous post about DoD commercial item contracts GSA-FSS contracts are commercial item.  So what now for the DoD CO (KO) wondering about a GSA-FSS existing order?

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1 hour ago, C Culham said:

If the underlying contract has not been modified to include the clause

I would argue with the writer of this slide that this exact quoted language is irrelevant and he/she should clarify the premise behind giving this guidance.  I surmise he/she did not get a legal review on the guidance and is just addressing concerns of ignorant COs asking this of GSA.  A FSS Order is a separate contract from the FSS according to the SCOTUS.  See Kingdomware Technologies, Inc., v. U.S., 136 S.Ct. 1969 at page 1978 (2016) decision, "The placement of the order creates a new contract; the underlying FSS contract gives the Government the option to buy, but it does not require the Government to make a purchase or expend funds."  If that is so, then you have to modify that separate contract regardless of the underlying contract.  It was only "underlying" during the solicitation process of your Order.  Based on my own uneducated reading of this case law I think FSS Solicitation Refreshes to include the COVID clause are not going to get me off the hook to mod my contract, regardless even of what the GSA CO writes into the underlying contract upon inserting it.  That said I will wait and see what they write into it, because I want a meeting of the minds with my contractor that my Agency's clause is the requirement, not GSA's.  I don't do knee jerk reactions in my work, personally. 

1 hour ago, C Culham said:

And spinning back to the previous post about DoD commercial item contracts GSA-FSS contracts are commercial item.  So what now for the DoD CO (KO) wondering about a GSA-FSS existing order?

No one on that post questioned including the clause on prime, commercial contracts.  They questioned if the clause's paragraph (d) "Subcontracts" requires flowdown to commercial subcontractors.

3 hours ago, Vern Edwards said:

If you are a CO, the ambiguity is easily avoided by expressly addressing the matter in the bilateral mod, stating that the contractor agrees not only to adding the clause to the underlying IDIQ contract, but also to all ongoing task orders.

Thanks for the brilliant, concise answer to the OP, Vern.  If it's that easy then I envy the Single-Agency IDIQ COs at the Task Order level that can just sit back and wait for their colleague to blanket-apply the clause.

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Per DoD Memo, https://www.acq.osd.mil/dpap/policy/policyvault/USA001998-21-DPC.pdf, DoD is providing the KO's an option as to roll in the DFAR clause into contracts, task orders, etc. awarded before October 15, 2021. To me, this is further evidence that merely issuing a bilateral mod at the ID/IQ level does not automatically apply to the awarded task orders and a subsequent bilateral mod must be performed at the Task Order level.

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1 hour ago, Guest108830 said:

Per DoD Memo, https://www.acq.osd.mil/dpap/policy/policyvault/USA001998-21-DPC.pdf, DoD is providing the KO's an option as to roll in the DFAR clause into contracts, task orders, etc. awarded before October 15, 2021. To me, this is further evidence that merely issuing a bilateral mod at the ID/IQ level does not automatically apply to the awarded task orders and a subsequent bilateral mod must be performed at the Task Order level.

It's not evidence of anything except that contracts and orders must be modified. How you do that is a practical matter.

I feel like I must give a course in basic contracting.

There are IDIQ contracts and there are IDIQ contracts.

Under a single-agency, single-award contract there would be nothing wrong with cutting a single bilateral mod covering both the contract and specified orders under that contract in order to incorporate the clause in both.

Under a single-agency, multiple-award contract you would need a mod for each contractor, but you could still mod each contract and specified orders in a single bilateral mod.

Under a multi-agency contract the managing CO would mod the contract, but each ordering agency should modify its orders.

The above will work, even if REAs or claims result, unless your contracting or legal staff are boneheaded and stupid.

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15 hours ago, Vern Edwards said:

It's not evidence of anything except that contracts and orders must be modified. How you do that is a practical matter.

I feel like I must give a course in basic contracting.

There are IDIQ contracts and there are IDIQ contracts.

Under a single-agency, single-award contract there would be nothing wrong with cutting a single bilateral mod covering both the contract and specified orders under that contract in order to incorporate the clause in both.

Under a single-agency, multiple-award contract you would need a mod for each contractor, but you could still mod each contract and specified orders in a single bilateral mod.

Under a multi-agency contract the managing CO would mod the contract, but each ordering agency should modify its orders.

The above will work, even if REAs or claims result, unless your contracting or legal staff are boneheaded and stupid.

Agree. It should be self evident to a KO that a bilateral mod to existing contracts requires and involves a clear meeting of the minds as to the scope and coverage of the bilateral mod. It should be clearly expressed in the mod.

If separate bilateral mods are needed at the existing task order level to agree on the inclusion of the new clause(s) and cost or other impacts involved, if any, then the contract level mod should make that clear.  

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