Exceedance of IDIQ Capacity with Modification to Existing Task Order

[vsup]

One last question on this topic.  If the agency has MATOC's would this change the answers to any of these questions when only one IDIQ MATOC holder would be over their capacity.  If not, are there any court cases that you all know of that involve MATOC's.

 

[joel hoffman]

On 1/11/2023 at 4:05 PM, vsup said:

One last question on this topic.  If the agency has MATOC's would this change the answers to any of these questions when only one IDIQ MATOC holder would be over their capacity.  If not, are there any court cases that you all know of that involve MATOC's.

I believe that it would be much simpler [EDIT: here] if only one MATOC holder will exceed their capacity than if the entire MATOC limit is exceeded.

You would only be dealing with the other pool members than full and open industry competition. No firm outside of the MATOC would be an interested party, in line for task orders on the contract.

I think that you could justify the necessity to modify or change the task order to the other pool members so the incumbent can complete the service. You could use a rational similar to the logical follow on exception to equal opportunity, as has been explained earlier herein. The incumbent is the designer of record for a construction contract which has to be extended, etc, etc.

It’s not a new effort, it’s completing an existing effort, necessary to maintain the integrity of the design and to avoid adversely impacting the construction contract progress - cost and time avoidance.

No I don’t have a court case. Instead of constantly living in fear of protests, effectively communicate with the other pool members, expressing the necessity. I seriously doubt if they would object…if the extension is for a relatively small dollar amount that wouldn’t prejudice their interests as fellow MATOC members.

If all else fails for the situation (individual MATOC cost limit would be exceeded to complete the existing task), one should be able to issue a small, new sole source A/E contract, using a simplified A/E selection procedure.

EDIT: another option, which would be legal, although not necessarily make sense, would be to issue a small task to one of the other pool members and tell them to subcontract the work to the incumbent. This would be a last resort if the cost limitation is an absolute.

What would you do if the limit was reached and there was a valid claim by the A/E firm which would require additional payment? I don’t think that the limit is intended to be an absolute block on completing an existing A/E task.

It could happen to any of the pool members.

Edited January 13, 2023 by joel hoffman

[joel hoffman]

For A/E MATOCs, the scenarios presented in this thread could be a lesson learned not to box yourself in with absolute cost limitations. Include some flexibility for situations,  such as that presented here (e.g., “necessary”, “non-discretionary” modifications to existing task orders, arising during execution) where possible in the description of the limitations…

For that matter, the same philosophy could be appropriate for construction MATOCs or SATOCs. 

Edited January 13, 2023 by joel hoffman

[Vern Edwards]

19 hours ago, vsup said:

If the agency has MATOC's would this change the answers to any of these questions when only one IDIQ MATOC holder would be over their capacity.  If not, are there any court cases that you all know of that involve MATOC's.

I don't remember what all of "these questions" were, and I'm not going to go back and look.

But, generally, each of the multiple-award contracts has its own maximum and minimum and is treated separately, unless the contracts in some way state otherwise.

[Retreadfed]

21 hours ago, vsup said:

If the agency has MATOC's would this change the answers to any of these questions when only one IDIQ MATOC holder would be over their capacity.

By capacity, I presume you mean maximum amount that can be ordered.  In my experience, when an RFP is issued for a MATOC, it states the maximum amount that may be ordered under all contracts awarded pursuant to the RFP.  When the contracts are awarded, each individual contract states the maximum for all contracts listed in the RFP as maximum for each individual contract.  In this case, if one contractor exceeds the maximum stated in its contract, which is the same as the maximum stated for all contracts combined, would this not impact all MATOC contractors?

[joel hoffman]

17 hours ago, Retreadfed said:

By capacity, I presume you mean maximum amount that can be ordered.  In my experience, when an RFP is issued for a MATOC, it states the maximum amount that may be ordered under all contracts awarded pursuant to the RFP.  When the contracts are awarded, each individual contract states the maximum for all contracts listed in the RFP as maximum for each individual contract.  In this case, if one contractor exceeds the maximum stated in its contract, which is the same as the maximum stated for all contracts combined, would this not impact all MATOC contractors?

If one contractor “exceeds” the maximum in its contract, if it is the same as the maximum stated for all contracts combined, this would impact all MATOC contractors.

Beyond that, it would seem that this contractor has been awarded all of the task orders.

In addition, the limitation prevents the government from “exceeding” any single pool member’s contract.

Edited January 13, 2023 by joel hoffman

[Vern Edwards]

Is a "multiple-award task order contract" (MATOC) one contract with multiple parties or multiple separate contracts with identical terms?

[C Culham]

1 hour ago, Vern Edwards said:

Is a "multiple-award task order contract" (MATOC) one contract with multiple parties or multiple separate contracts with identical terms?

My belief it should be the latter, at least separate contracts.  Not sure how the courts might view it but is how I have always viewed it.   My thought it is not identical terms however because terms might different - example is not pricing a term?

[formerfed]

19 hours ago, Retreadfed said:

By capacity, I presume you mean maximum amount that can be ordered.  In my experience, when an RFP is issued for a MATOC, it states the maximum amount that may be ordered under all contracts awarded pursuant to the RFP.  When the contracts are awarded, each individual contract states the maximum for all contracts listed in the RFP as maximum for each individual contract.  In this case, if one contractor exceeds the maximum stated in its contract, which is the same as the maximum stated for all contracts combined, would this not impact all MATOC contractors?

Here’s an example.  An interesting piece is the last sentence stating there’s no upper limit on task orders

Quote

B.4 MAXIMUM CONTRACT CEILING AND MINIMUM CONTRACT GUARANTEE
(a) Maximum. The maximum contract ceiling value of all contracts in this multiple award procurement is established at $50 Billion dollars.
(b) Minimum. The minimum guaranteed award amount for this IDIQ contract is $2,500 dollars per Contractor for the full term of the Master Contract. The exercise of the option period does not re-establish the contract minimum.
Should the contract expire or be unilaterally terminated for convenience by the Government without the contractor receiving the minimum guaranteed award amount, the contractor may present a claim to the contracting officer for an amount not to exceed the minimum guaranteed award amount. The minimum guaranteed award amount is not applicable if the contract is terminated for default or is bilaterally cancelled by the parties. The contractor has one year after contract termination or expiration to submit their claim to the contracting officer or waives entitlement.
(c) The Government has no obligation to issue Task Orders (TO) to the Contractor beyond the amount specified in paragraph (b) of this clause. Once the conditions of paragraph (b) have been met the Contractor continues to be afforded fair opportunity, as per FAR 16.505(b)(1), to compete for Task Orders issued through the expiration of the Master Contract or termination of the Contractor’s Master Contract, whichever occurs first.
(d) As a result of an awarded Task Order that satisfies the minimum contract guarantee the government will deobligate the funded minimum contract guarantee from the Contractor’s Master Contract.
There is no maximum dollar ceiling for an individual Task Order.

 

[REA'n Maker]

On 1/11/2023 at 7:20 PM, joel hoffman said:

Instead of constantly living in fear of protests, effectively communicate with the other pool members, expressing the necessity.

Maybe "Put them on notice" is a better term than "effectively communicate"?  OASIS for example has hundreds of SB & LB vendors.   What do you do if someone objects?  Assuaging the belligerence of even a small % of the OASIS vendors would be a huge task.

My agency did an industry day for OASIS SB Pool 1 under NAICS 541611 and we had 95 participants.

[FAR-flung 1102]

2 hours ago, Vern Edwards said:

Is a "multiple-award task order contract" (MATOC) one contract with multiple parties or multiple separate contracts with identical terms?

I think the answer to that (whichever it is) once embraced will help us address the matter of how to apply thresholds to MATOCs.

Maybe it's to be found somewhere, but I've looked and not located in policy or regulation, any clear treatment of how to value MATOCs when applying thresholds for such purposes as Agency approvals and applicability of the Contractor Performance Assessment Reporting System (CPARS)...

[Vern Edwards]

If a MATOC is one contract with many parties, would a breach by one contractor entitle the others to compensatory damages, if any?

[Retreadfed]

4 hours ago, Vern Edwards said:

Is a "multiple-award task order contract" (MATOC) one contract with multiple parties or multiple separate contracts with identical terms?

Neither, but the latter is the closest answer.  Under an RFP for MATOCs, a certain number of contracts can be reserved or set aside for small business concerns.  Thus, you can have some contracts that are awarded to large businesses that will have one set of terms and conditions, e.g., a requirement  for a small business subcontracting plan, and contracts awarded to small businesses with another set of terms and conditions, e.g., limitation on subcontracting.

[joel hoffman]

1 hour ago, REA'n Maker said:

Maybe "Put them on notice" is a better term than "effectively communicate"?  OASIS for example has hundreds of SB & LB vendors.   What do you do if someone objects?  Assuaging the belligerence of even a small % of the OASIS vendors would be a huge task.

My agency did an industry day for OASIS SB Pool 1 under NAICS 541611 and we had 95 participants.

My comment was addressing the A/E MATOC in this thread.

I don’t disagree with you concerning MATOCs with many contract holders.