govt2310

@C Culham Thanks for the bls.gov link! @Don Mansfield In an OMB Memo issued in 2006, Q&A on the Paperwork Reduction Act (PRA), at question # 75, it talks about how incentives in Federal Government surveys have "raised a variety of concerns about their cost, the use of taxpayer funds, impact on survey responses" etc. So the PRA of 1980 prohibited the use of incentives for respondents to Federal surveys "unless agencies could demonstrate a substantial need." So it is possible for an agency to pay incentives, but it has to be justified. Now that I am seeing this OMB Memo, I guess it answers my own question: yes, an agency does have authority to pay incentives to respondents for Federal surveys, but only on the condition that the agency "demonstrate a substantial need." Therefore, an agency can have a contractor do the surveys and pay the respondents, but the agency has to "demonstrate a substantial need" first. Oh, and it looks like this only applies if there are "identical questions" and more than 9 people doing the survey. So if the questions are NOT identical, and there are fewer than 9 people doing the survey, then the Paperwork Reduction Act doesn't apply. Therefore, an agency, in that scenario, wouldn't need to demonstrate substantial need before proceeding. Does anyone see a flaw in my reasoning?

Let's say an agency wants to do "information collection." The agency needs to do a survey of people at universities, non-profits, and places like that to find out how best to design a research project. Can the agency pay the survey participants an "incentive" fee or an honorarium? Can an agency hire a contractor to do this information collection, and just say in the solicitation, we leave it to the contractor to figure out how to get participants to participate in the survey, and that this can include the contractor paying "incentives" to the survey participants? Also, assume that this information collection does not involve "identical questions," and does not involve asking such "identical questions" to more than 9 people, so therefore, the Paperwork Reduction Act doesn't apply.

@ji20874: I don't recall talking about this issue before. @joel hoffman: I know, it seems obvious that, if an agency can't do something, how can it make a contractor do it? But it has been put on my plate confirm whether this is allowed or not. I didn't come up with the question. But I am stuck with the task of finding the answer. @ Vern Edwards: I understand. Ok, I have the Formation of Government Contracts book here at home and will take a look. I will also look at that FAR cite. Thank you.

Oh wait, in the GAO Red Book, Chapter 3, Purpose, it kind of does address my question. 31 USC 1301(a) says that appropriated funds can only be used for the purpose they were appropriated for: "Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.." But this sounds more like it is intended to address the situation where an agency purchases something it is not allowed to purchase, such as "insurance" (the GAO Red Book says agencies are prohibited from purchasing insurance). What if an agency is required to comply with a statute, but then the agency hires a contractor do something that violates that statute, can the agency take the position that the agency didn't violate the statute, it was only the contractor that did the action in question, and since the statute doesn't apply to the contractor, there is no violation? I now this sounds non-sensical, but I have to look into this and run it down to the end. If anyone knows of any court decisions on this topic that involve an agency hiring a contractor to do a task that the agency does not have authorization to do (or rather, the agency will be violating a statute if it does this thing itself), please post it.

Thanks, Vern! Well, I looked at the GAO Red Book section that you cited. While I do see the authorization vs appropriation legislation discussion in there, it still doesn't exactly answer the question, "Can the USG have a contractor do something that the USG does not itself have power/authority to do?" It seems like an obvious answer, but I really want to find support for it somewhere. I also looked at the GAO Red Book in the Purpose section (Chapter 3), and I found nothing helpful in there. Maybe the answer is so obvious that it has never come up before? Here is the link to the GAO Red Book, https://www.gao.gov/legal/appropriations-law/red-book.

It seems like common sense to me that, if the U.S. Government doesn't have authority to do something, it cannot hire a contractor to do it. However, I cannot find any law, regulation, or court decision that says this. Does anyone know of any?

To ji20874: Thanks for clarifying the meaning of "maximum." I didn't know that! Good point.

Another twist! Let's say the CO screwed up the language in FAR 52.216-18 by mixing it up with language from FAR 52.216-19. Let's say the contract contains FAR 52.216-19 with the correct language, just on another page of the Contract. FAR 52.216-19 contains paragraph "d," which states that "the Contractor shall honor any order exceeding the maximum order limitations," unless they give notice to the Government that they don't intend to fulfill the order, and upon receipt of said notice, the Government is free to acquire the supplies/services from "another source." So this means its ok to issue the task order to the one remaining awardee on the MAC IDIQ, which is Contractor B, right? FAR 52.216-19 Order Limitations. As prescribed in 16.506(b), insert a clause substantially the same as follows: Order Limitations (OCT 1995) (a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than ___ [insert dollar figure or quantity], the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract. (b) Maximum order. The Contractor is not obligated to honor - (1) Any order for a single item in excess of ___ [insert dollar figure or quantity]; (2) Any order for a combination of items in excess of ___ [insert dollar figure or quantity]; or (3) A series of orders from the same ordering office within __ days that together call for quantities exceeding the limitation in subparagraph (1) or (2) above. (c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation (FAR)), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph (b) above. (d) Notwithstanding paragraphs (b) and (c) above, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within __ days after issuance, with written notice stating the Contractor's intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.

Well, now there's a twist! Say the Master IDIQ Contract contains FAR 52.216-18 ORDERING (OCT 1995). However, somehow the CO did something that resulted in the language in that clause being changed. The original FAR 52.216-18 reads: FAR 52.216-18 ORDERING (OCT 1995) Indefinite Quantity (OCT 1995) (a) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract. (b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the maximum. The Government shall order at least the quantity of supplies or services designated in the Schedule as the minimum. (c) Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. (d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's rights and obligations with respect to that order to the same extent as if the order were completed during the contract's effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after ___ [insert date]. But say the actual FAR 52.216-18 clause found in the Master IDIQ Contract reads (and it has all these typos and paragraph misnumbering as shown): FAR 52.216-18 ORDERING (OCT 1995) (c) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from DATE through DATE. (e) 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. (c) If this is a requirements contract . . . the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum order limitations in paragraph (b) of this section. (d) Notwithstanding paragraphs (b) and (c) of this section, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within 2 days after issuance, with written notice stating the Contractor's intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.

Vern and C Culham: Thanks! These are all good points.

Ok, I see where Vern and ji20874 might be coming from. Well, let me throw this out there: How about taking the position that both A and B were already given fair opportunity because, at time of the original Master IDIQ Contract Competition, it was already known to all offerors that there would be a price ceiling/maximum quantity on each contract awarded, so all offerors were on notice of the possibility of it turning out later down the road that one awardee's ceiling/maximum might be reached before the other awardee's?

If the agency were to give notice to A and B, knowing that A doesn't have a chance because its contract has hit the price ceiling/maximum quantity already, Contractor A could file a protest at GAO. GAO would find that Contractor A is an interested party. Why? See REEL COH, a GAO decision from January 2020. In REEL COH, the protester, who was ineligible for award (due to a technically unacceptable proposal), challenged the award to the awardee, and GAO found that, even though the agency properly found the protester to be technically unacceptable, protester was still an interested party because, if GAO sustained the protest, the agency would have to issue a new solicitation, so protester had an economic interest because it would be eligible to submit a new proposal to the new solicitation. So it looks like Contractor A could file a protest contending that the agency's doing a sham fair opportunity competition exceeded the scope of the Master IDIQ Contract. The remedy that Contractor A could seek is for GAO to make the agency do a totally new solicitation for the Master IDIQ Contract, not just a new solicitation at the task order level on the existing Master IDIQ Contract. Thoughts? REEL COH Inc.B-418095,B-418095.2: Jan 10, 2020

Yes, by "price ceiling," I mean the "maximum" quantity mentioned in FAR 52.216-22(b). For the total value of the future task order that I am asking about, assume the amount is > $10 million. Say it is $20 million.

There is no time to establish a new multiple award IDIQ. I believe GAO has stated in the past that, if the ceiling on a task order has been reached, if the agency were to go past that, even if the contractor agrees to waive the ceiling, that that is indeed out of scope of the original competition for the MAC. I don't have an answer for "what was the value of the original acquisition" and "what was the maximum on each contractor's contract." Sorry. Well, since Contractor A is out, this brings me back to my original question: Can the agency just make award to Contractor B for a new task order without doing any "fair opportunity" competition?

Say an agency awarded a multiple award IDIQ. There are two contractors who got award. Each contract has a price ceiling. What if contractor A's ceiling is maxed out, so it is ineligible to get award of any future task orders. Can the agency just issue task orders to contractor B without doing a "fair opportunity" competition?