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.

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

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?)

ji20874 - It's not the J&As are problematic in theory. We deliberately created a cumbersome process to make people not use them. Once you release the Bureaucratic Kraken though, you find it very hard to bind it again. I am simply trying to lighten the load of an overworked 1102 workforce faithfully fighting the good fight to get the work done. Whenever I see a process that does not add value or impact outcomes, I always try to remove it. Thank y'all for the good input. Others feel free to opine if the feeling strikes.

ji20874 - Not sure the point that you are making. Perhaps you're restating that the Delays clause is not a viable choice in regards to an IDIQ ordering period. Or perhaps you are referring to the term adjustment. It is our legal team's opinion that you cannot make any adjustment but time under the 52.249-14 that we can only add time to the contract.

My thought on the Changes clause is the Time of Performance. A small hook to hang my hat but I just need it to hold up for a little bit. The actual scope meaning the work to be done doesn't change. We just need more time. RE: Delays - We're a polite bunch. We prefer to say that the contractor could not perform rather than failed. But yes, the clause is justified when an event impacts the contractor, not the government. USG caused delays opens up the issue of equitable adjustments, which does not apply here.

We have variations but typically, it states five years from the date of signature. Though some COs will put in a specific date. I do like your thinking though... Some would say that we were open for business but if other business (pandemic response) overwhelmed us, then we could not order during that time frame. Is that where you were going?

ji20874 - We do use those from time to time. The posting requirements still mandate multiple postings. But yes, the J&As will look incredibly similar. From a process (approval/clearance perspective), it's the same amount of work.

@joel hoffman That is correct. Legal counsel and most of the the CO community wants us to write a J&A. We will but I wanted to see if anybody else had any experiences or thoughts on using either clause. The GAO has been fairly generous towards agencies in determining when competition is triggered by the Changes clause. My thought was 'How would the competition have been impacted if this change (longer ordering period) was known at the time of the solicitation? The only impact that I see is that maybe somebody would have bid on a six year IDIQ that did not bid on a 5 year one but I consider that a stretch given the competition that we have. Only companies who did not bid would have standing to protest on that basis. None of the losing bidders could argue that they were disadvantaged by the longer extension. IMO. I'm just fishing for thoughts or experiences.

JI20874 - That is what we are doing. Using the Delays clause to extend TOs and J&As (our JEFOs) to extend IDIQs. However, the non-comp process is purposefully burdensome and we are looking for ideas on extending ordering periods. I haven't found a GAO case dealing with the issue so it could be territory that legal counsel has fenced off.

Definitely non-commercial. They are for specialized technical services almost exclusively. Typically, they are CPFF but there are some instances of FFP and T&M. Supplies can on occasion enter into the equation in combination with the services but we do not use our IDIQs for supplies.

My Agency frequently awards IDIQs. Unfortunately, we have lost a lot of design time for new Task Orders due to pandemic. Unfortunately, many IDIQs ordering periods are set to end. We are having a vigorous discussion as to whether Excusable Delays or the Changes Clauses would be appropriate to extend the ordering period. The basic arguments against using them are that IDIQs are contracts to potentially order work as opposed to an actual order for work. While that argument may make sense for a rejection of the Excusable Delays clause, it would still seem appropriate to allow for the changes clause to alter the delivery schedule of all contracts under a multiple award IDIQ. In effect, we are changing the delivery time frame for the potential work to be ordered. My questions are a) If others have had this conversation in their agencies, what was the consensus/practices adopted? and 2) Has anyone seen either of these clauses used in this type of situation?