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Background:

Our office awarded an IDIQ contract prior to Oct 10 which included multiple AFMC clauses. On 15 Oct 10, HQ AFMC/PK issued a memo in response to SAF/AQC?s memo eliminating the AFMC FAR Supplement. The AFMC/PK memo states, ?AFMCFARs shall not be used for new solicitations after 15 Oct 10.?

Question:

Since the IDIQ was awarded prior to the 15 Oct 10 policy memo, will the AFMC clauses apply to Delivery Orders issued subsequent to the policy memo? To support the answer to the aforementioned question, I would first need to understand if a DO is considered a ?new" solicitation or not. Any advice would be most appreciated.

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Delivery order solicitations and the orders themselves that are issued under IDIQ contracts are issued pursuant to the terms of such contracts and are governed by those terms. See the ordering clause, FAR 52.216-18, Ordering (OCT 1995), which is required to be inserted in IDIQ contracts and which says, in pertinent part:

"(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."

Once a contract is awarded, the parties are bound by its terms, not by the AFMCFARS, except to the extent that the AFMCFARS is incorporated into the contract by reference. If and to the extent so incorporated, those terms would survive the elimination of the AFMCFARS except as otherwise provided in the contract as awarded or as modified by the parties.

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A companion question, if I may.

Let's suppose there is an IDIQ which is awarded with a base year and four option years, and which includes the FAR clause found at 52.217-8. Let's further suppose that a Task Order is issued against the IDIQ (for severable services) requiring a base period of performance and four option years, but that the Task Order itself does not refer to or contain FAR 52.217-8. Finally, lets further suppose that the last option year of the IDIQ came to an end, and that the IDIQ Contracting Officer exercised the extension permitted under 52.217-8 for 6 months and that came to an end as well. The Task Order is now in its last option year and it will come to an end shortly. Can the Task Order be extended using 52.217-8? To put the question a slightly different way, in this scenario, because 52.217-8 was only in the IDIQ and not in the Task Order, can it only be used to extend the ordering period of the IDIQ, or does it somehow "flowdown" to the Task Order because it is a "term or condition" to which the Task Order is subject by virtue of FAR 52.216-18?

Anyone have any thoughts?

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Will defer to folks like Vern, FarFetched and Don A, but at my office it was interpreted several years ago that if 52.217-8 was in IDIQ, it could be applied to the Orders issued under it even if not included in order. But that interpretation changed late 2007 (I think) and now interpretation is that if not in order, cannot be used nor can it be added after award.

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I am not surprised to learn that some offices have applied the clause on an order-by-order basis. The clause might plausibly be read to apply that way; note that the clause does not provide for extension of the contract, but of "any services." Now that the award of an order can be protested, order-by-order use is not inconsistent with the policy intent stated in FAR 37.111. But if I were going to interpret it that way I would argue that the clause does not have to be inserted in an order to be applicable to the order. It applies, by its own language, to "any services" ordered under the contract. However, if I were planning to apply the clause on an order-by-order basis, I would say so in the contract in order to avoid any dispute.

There is a problem, however, under multiple award IDIQ contracts--the GAO's decision in Major Contracting Services, Inc., B-401472, 2009 CPD P 170; request for reconsideration denied, B-401472.2, 2009 CPD P 250, which requires that the -8 option either be priced and evaluated at the time of contract award or that exercise be accompanied by a sole source justification. Applying the clause on an order-by-order basis would make such pricing difficult during contract award. Moreover, the GAO's decision would presumably apply to each competitively awarded order, as well as to the contract. In my opinion, it would be hard to write a sole source justification to extend a competitively awarded task order.

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I am not surprised to learn that some offices have applied the clause on an order-by-order basis. The clause might plausibly be read to apply that way; note that the clause does not provide for extension of the contract, but of "any services." Now that the award of an order can be protested, order-by-order use is not inconsistent with the policy intent stated in FAR 37.111. But if I were going to interpret it that way I would argue that the clause does not have to be inserted in an order to be applicable to the order. It applies, by its own language, to "any services" ordered under the contract. However, if I were planning to apply the clause on an order-by-order basis, I would say so in the contract in order to avoid any dispute.

There is a problem, however, under multiple award IDIQ contracts--the GAO's decision in Major Contracting Services, Inc., B-401472, 2009 CPD P 170; request for reconsideration denied, B-401472.2, 2009 CPD P 250, which requires that the -8 option either be priced and evaluated at the time of contract award or that exercise be accompanied by a sole source justification. Applying the clause on an order-by-order basis would make such pricing difficult during contract award. Moreover, the GAO's decision would presumably apply to each competitively awarded order, as well as to the contract. In my opinion, it would be hard to write a sole source justification to extend a competitively awarded task order.

Vern,

What is your opinion about exercising the option for 6 months if 52.217-8 is incorporated into a single-award IDIQ contract, but it is not in the task order?

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If the clause is in the contract, it need not be inserted into the order, because the terms of the contract apply to orders. The clause allows the CO to extend "any services," not just the contract. I think that if each order specifies a discrete and severable service, then each order is an "any service" and can be extended for up to six months. The same applies to CLINs. If a contract contains multiple CLINS, and if each CLIN is for a discrete service, then the one could argue the the clause applies to each CLIN individually, and the services described in each CLIN can be extended for up to six months.

However, the CO should be clear during contract formation that the clause applies to task orders individually:

The clause at FAR 52.217-8, which is incorporated into this contract by reference and made a part hereof, shall apply not only to the contract as a whole, but also severally to each order issued under the contract. The services specified in the contract and in each order may be extended for up to six months pursuant to the terms of the clause.

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