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Fara Fasat

Clauses in DO/TO

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When an IDIQ contract allows for a variety of TOs and DOs, i.e. fixed-price, T&M, construction, services, etc., and has all potentially applicable clauses in it, how does a TO/DO indicate which clauses apply to it? The IDIQ at issue here has all BAA and TAA clauses in it, all Davis-Bacon and SCA clauses, all possible alternates of several clauses, and so on, most of which will not apply to any one particluar TO or DO. Should the TO or DO list the clauses that are applicable to it, or do you have to work through all of the prescriptions (thresholds, types of contract, etc)?

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The underlying contract should have stated which clauses apply to which orders. It sounds like the contract permits issuance of a variety of orders. The simplest way to have indicated clause applicability would have been to prepare a matrix similar to the one in FAR Subpart 52.3.

If the contract does not clearly indicate which clauses apply to which orders, then you will have to stipulate the applicable clauses in each order. What a nuisance.

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More than a nuisance. Neither of those ways appear to be used. We're a sub trying to figure out what should go in our contract, and the prime doesn't seem too concerned about it. (The old "self-deleting" rationale).

The answer to this would help: When applying the dollar thresholds in the clause prescriptions, do you use the TO value, the IDIQ minimum, the IDIQ maximum? FAR 1.108 says you use the final anticipated value for the "action", but what is the "action" in a TO under an IDIQ contract? We are especially concerned with the Buy American and Trade Agreements thresholds.

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The rules about this are not entirely clear. The uses to which IDIQ contracts are put today were not contemplated when the basic FAR coverage was written. It seems clear that individual orders were not considered separate contract awards. All clauses in the contract were expected to apply to all orders issued under the contract, regardless of the dollar value of an individual order. Each order was simply a part of a larger whole. But that is not so clear these days, when orders issued under a single contract might be issued to different contractors for very different work.

A conservative approach would be as follows: If a contract permits the issuance of orders of different types (pricing arrangements) and kinds (deliverables), to which different clauses apply, then the contract should establish separate line items for each type/kind combination and apply the appropriate contract clauses on a line item by line item basis. Every order issued under a line item is then subject to all of the clauses applicable to that line item, and dollar thresholds apply at the line item level, not at the order level. The contract minimum could apply across line items, but the contracting officer should prepare an estimated quantity or dollar amount for each line item in order to determine policy/clause applicability. But I can anticipate several arguments against that approach.

I would go so far as to say that the issue is not resolved by the FAR, and contracting officers might legitimately solve the problem in any number of ways. The obvious objection to that point of view is resultant inconsistent policy implementation across government, assuming that is thought to be a problem.

I suspect that most agencies treat each order as an entirely separate contract action, and apply dollar thresholds accordingly. Other agencies have not thought about the problem, which could give rise to interpretational problems.

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Problem solved! Prime's response to how it knows what clauses go in its TO: the more stringent version. That's apparently the rationale they want us to follow as well. I suppose then that everything else is self-deleting. B)

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For sure. Having developed a IDIQ for certain services, Road Maintenance in this case, that could have resulting work in either Construction or non-construction awards(competed of course as multiple award), I set up the Schedule of Items to reflect Construction (D-Bacon) or straight service items. And that task orders would be either or all the way, and not have any mix of the two.

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