Vern Edwards

Might you say that input is workload (requisitions, changes, etc.), process is the workforce and its procedures, and output is contract awards, mods, closeouts, etc.? Is it a norm that you want to compare yourselves to, or is it a mandate, goal, or ideal?

The complete paragraph is: The contractor is obligated from the date of award to deliver what is ordered within the ordering period, and the government is obligated to buy the stipulated minimum. There must be a contract before the government can issue any order and have a right expect the contractor to perform. The purpose of the first sentence in FAR 52.216-22(b), quoted above, is to stipulate that the Government will pay only for what the Government orders in accordance with the Ordering clause. It is a limitation on the Government's liability. Neil, I respect you for what you know, and I don't want you to withdraw. But you clearly don't know much about indefinite-delivery contracts. When it comes to IDIQ, read a book to get a clue. Try Formation of Government Contracts, 4th ed, by Cibinic, Nash, and Yukins, pp. 1,386 - 1,406. Learn something before you quibble with people who have been around for a while. (Not that we can't be wrong.) Start your own post, a place where learners can collaborate with others in study. Everybody has to start learning at some point. No shame in that.

I speculated about that in an earlier post in this thread. I further speculate that a promise (1) to include an offeror in an exclusive pool of contractors and (2) to give them a fair opportunity to compete for sales against only others in the pool could serve as the consideration necessary to bind the parties. If that is right, then there would be no need for the government to promise a minimum purchase from each (or any) contractor in order bind the parties. That being the case, there would be no need to record an obligation of funds on the date of award.

Back in the day, when I awarded IDIQ contracts for supplies, we recorded the obligation for the minimum on the contract document, then assigned those funds to an order or orders via "administrative notice" ("administrative change" today) as we issued them until the minimum was purchased. We did that because we did not always have an immediate requirement on the date of contract award or for some time afterward. Some agencies may still do that. But simultaneous award of the contract and issuance of an order for the minimum seems to be a common practice today.

@General.ZhukovWhat are you up to? Writing a paper, thesis, dissertation, article, or book? Do you have some hypothesis about workforce input and output?

In order for there to be an order, there must first be a contract. Think about it. That contract is commonly referred to as the "base contract," although it is a silly term. And an order placed against an IDIQ contract does not have to be accepted. The contract requires the contractor to perform. See FAR 52.216-22(b), which is a contract clause in an IDIQ contract. This thread isn't educational. When I started it I assumed that participants would be people with enough background to understand and think about the issues I am raising.

@Neil Roberts Your phrase: does not make sense. MATOC stands for multiple-award task-order contract. A task-order contract is an IDIQ contract for services. See FAR 16.501-1. Thus, a MATOC is a species of multiple-award contract, an IDIQ multiple-award contract for services. So what are you talking about?

I am asking whether a "multiple-award contract" (MAC) is one contract with multiple parties or multiple independent contracts, and I am wondering what the implications are in either case.

Oh, I wouldn't be surprised to learn that no COs have thought about the distinction that I'm making. I wouldn't be surprised to learn that no policymakers have thought about it.

What's interesting about it? Do you think it means something?

When you have completed your search for sources, let us know what you found. I search for data sources all the time. It takes many hours of my time. But I do my own looking.

This has been asked many times. The answer is that policy and practice vary from agency to agency.

There is no FAR requirement to allocate hours to specific labor categories, but it might be a good idea. Think about it.

@C Culham What do you think? If we could simply decide whether to make a MAC (1) a single agreement with multiple parties or (2) multiple separate agreements, which approach would be in the best interests of all involved? I guess that in order to answer that question we would have to think through the implications associated with each approach.

@C Culham I'm confused by two of the entries at the beginning of your last post. A multiple-award contract is not a solicitation. According to FAR 2.101 it's a contract. Award is the act of accepting an offer. In the FAR 2.101 definition of multiple-award contract. As for FAR 52.215-1, the phrase "make multiple awards" in paragraph (f)(6) does not necessarily mean the same as "award a multiple-award contract." A CO can make multiple awards (award multiple contracts) without awarding a multiple-award contract as defined in FAR 2.101.

@Neil Roberts Almost anything you could think of. Nobody knows how each of those contracts actually work over the course of millions of orders each year, not even their administrative contracting officers, and certainly not DAU. I'm looking for inputs from people who think they know what they are and how they work. @joel hoffmanThanks.

Why not (at least in theory)?

To all readers: Please understand that I am speculating about these matters. I am not asserting anything except that I think the FAR is in some ways obscure with respect to the topic at hand. I do not claim to know the answers to the questions that I have posed. I'm just trying to figure things out.

@joel hoffman Joel, please clarify what you are talking about---one contract with multiple parties or multiple independent contracts.

@C Culham You're welcome, Carl, and thank you, in return. @formerfed FAR 16.504(a)(1) says How does that apply to multiple-award contracts (MACs)? If a MAC consists of one contract with multiple contractor parties 1. The parties might agree that one min for the contract might serve as consideration for all the contractors and that the government is promising to buy the min from any one contractor or some combination of contractors, but not from every contractor. If the parties expressly agree on that point, then it is likely to stand up in court. 2. All parties might agree that the contract max is equal to the program max, and that the government can go to the max with any one contractor or with some combination of contractors, but not with every contractor. (To say that the government could go to the program max with every contractor would seem to violate the FAR requirement for a "reasonable" maximum quantity.) 3. Or all parties could agree on a min for each of the contractors and set one max for the contract, rather than a max for each contractor. 4. Or the parties might agree to set a min and a max for each of the contracting parties. However, the requirement that the max be a reasonable quantity might be interpreted to mean that you must allocate a portion of the program max to each contractor. That might not be in the government's best interest. If a MAC is consists of multiple independent contracts If "a" MAC is really a pool of independent contracts, then you need a min and a max for each and it seems reasonable that the max for each could be either the program max or some equitably allocated portion of the program max. I am well aware that MACs have been in widespread use since the mid-1990s and that there does not seem to have been much if any litigation arising from disagreements over the nature of a MAC, whether "it" is one contract with multiple parties or multiple independent contracts. Yet.

One additional thought. If a MATOC or MADOC is one contract with multiple parties, and if one contractor cheats to win an order during a fair opportunity, and if there is a protest, the cheat is discovered, and the protest sustained, would the other contractors have standing to sue the cheater for breach damages in a Federal district court? Are multiple-award contracts multilateral contracts? That possibility might interest some people.

@C Culham Carl, thanks for the thoughts. I said I was done because I don't want to be an accomplice in one of those endless Wifcon back-and-forths that don't go anywhere. But I'll respond to your comment. What prompted me to ask my question was the suspicion that most COs don't think about it. They make multiple awards without ever asking themselves whether they are awarding one contract with multiple parties or multiple separate contracts. I think it's important to think clearly about the matter and to consider its possible implications. I suspect that most COs, who get little or no formal education or training in contract law from DAU and FAI and do little reading about it on their own, think of "contracts" as documents, not the agreements that the documents memorialize. So they think that different contract numbers mean "different" or "separate" contracts. Consider the Restatement, Contracts, Second, § 1, Contract Defined: "A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." According to Black's Law Dictionary: "contract n. (14c) 1. An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law <a binding contract>. 2. The writing that sets forth such an agreement..." The evidence of an agreement as to promises is not limited to the written document. That is the primary evidence, but not the only evidence. See Burton, Elements of Contract Interpretation (Oxford, 2009) and see the discussion of "extrinsic evidence" in Cibinic, et. al, Administration of Government Contracts, 5th, pp. 177-211. For instance, when it comes to interpreting a contract, a court or board will of course look at the contract document, but it might also consider other facts, such as communications between the parties prior to the dispute. If a MATOC/MADOC is one contract with multiple contractors, instead of several separate contracts with several contractors, must the CO interpret the contract terms the same way for all parties? If the CO provides an interpretation to one contractor upon request, should she provide that interpretation to the others, as well, even if they have not asked? Should she surreptitiously interpret the contract differently in order to obtain the outcome that works best for the government in its relationship with each of the parties? If a MATOC/MADOC is several separate contracts, all containing the same terms, may the CO interpret each contract somewhat differently for each contractor depending on the facts associated with each? Does it make a difference? I'm not a lawyer and I don't know the answers to those questions. The answers may be obvious to some lawyers, but I think we so-called acquisition or contracting "professionals" should at least wonder about that, investigate, and be proactive instead of waiting to learn about it in court. FAR is no help. It refers to both "multiple-award contract" (37 instances) and "multiple-award contracts" (68 instances). The FAR 2.101 definition of multiple-award contract says: Note the use of the indefinite article, "a," which, according to dictionaries, refers to a single thing. But then you get this, from FAR 15.304(c)(1): "A" (singular) solicitation will result in "multiple-award contracts." The FAR has not won prizes for usage consistency and clarity. And don't presume that the FAR councils have thought this through. They are scribes. The fact that this matter has not been an issue before a protest tribunal, a board, or a court in the years since the rules about multiple-award contracts were first published in FAR in 1994 doesn't mean that it won't be an issue in the future. All it takes is one article in a law review or legal publication to alert lawyers to possibilities they had not previously considered. I think it's an interesting question/issue, and I am going to keep researching. I might discover something that I have not yet found. But I'm not going to press for further discussion at Wifcon.

No, it's not that simple, Joel. There are potential legal and administrative issues that I thought might be of interest to professionals. That's why I asked my first question. But now I'm done with the topic.

There it is.

@Lionel Hutz I agree that the language in FAR seems to contemplate one contract with multiple parties. I just wish I were confident that the people who wrote the FAR chose their words thoughtfully and with specific intent. No one I have spoken to has felt confident in their opinion.