Clauses in Task Orders

Generally, if a clause is in the parent indefinite-delivery contract, it applies to all orders against that contract — the clause need not be repeated in the order.

Sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.  This is seen as okay because there is a competition for the order, and contract holders can submit offers based on the new clauses.

ji20874 said:

Sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.  This is seen as okay because there is a competition for the order, and contract holders can submit offers based on the new clauses.

I don't see it the same way. It would be helpful if some commenters could provide some regulatory and process discussion. At the moment I have no regulatory citations.  My reaction is the "parent" IDIQ contract is the only fair contract terms and they should not be altered by an order. Supposing the notice for an order significantly changed the terms and conditions of the "parent" to the point where some of the initially competitive bidders were no longer competitive? Should terms and conditions also be permitted to be deleted by a fair opportunity notice? What if some initial bidders were found to be non-competitive, are they excluded from the fair opportunity notice? What if the proposed added or deleted terms and conditions, given a chance, would make them competitive?

Neil Roberts said:

I don't see it the same way. It would be helpful if some commenters could provide some regulatory and process discussion. At the moment I have no regulatory citations.  My reaction is the "parent" IDIQ contract is the only fair contract terms and they should not be altered by an order. Supposing the notice for an order significantly changed the terms and conditions of the "parent" to the point where some of the initially competitive bidders were no longer competitive? Should terms and conditions also be permitted to be deleted by a fair opportunity notice? What if some initial bidders were found to be non-competitive, are they excluded from the fair opportunity notice? What if the proposed added or deleted terms and conditions, given a chance, would make them competitive?

Neil, I believe that 52.216-18(b) addresses your concerns about a change in an order that conflicts with a term in the parent IDIQ.

MCP,

see the same paragraph of the above referenced clause. Assuming this clause is in the IDIQ, it invokes all terms and conditions (including all clauses) in the parent IDIQ in all orders placed under the contract. Therefore you need not reference the same clauses in the resulting delivery order

Neil Roberts said:

It would be helpful if some commenters could provide some regulatory and process discussion

I agree.

uva383 said:

52.216-18

uva is on the right track as long as -18 clause is in the parent contract.  Let's hope it is.  Further I would pose what does the contract allow about additional terms and conditions being added to a TO.   Silent, allows or disallows as per uva's reference in effect  an add would be potentially be  in conflict with a term or condition already in the parent.  A donot get me started on whether the addition of terms and conditions might in fact be a change in scope of the IDIQ.   Here I would just say what clauses OP?

ji20874 said:

Generally, if a clause is in the parent indefinite-delivery contract, it applies to all orders against that contract — the clause need not be repeated in the order.

Nope not generally but  specifically if 52.216-18 is in the contract.  If not then I would leave to a CO to make it up but I do not like such an idea.

ji20874 said:

Sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.  This is seen as okay because there is a competition for the order, and contract holders can submit offers based on the new clauses.

Lets play this out.  The parent IDIQ contract has 52.216-18, still okay?  What about single award versus multiple award since the OP has not stated which type of IDIQ?   In either case does not the contractor(s) have a right to deny the additional clauses and if so what is the outcome with regard to their TO offer if they do not state agreement to the new clauses?   

And finally just for the heck of it as the OP has not stated what clauses......

Bottom line for me not enough info and in the pure sense of federal contracting "generally" does not apply but "depends" does.

Neil Roberts said:

Supposing the notice for an order significantly changed the terms and conditions of the "parent" to the point where some of the initially competitive bidders were no longer competitive? Should terms and conditions also be permitted to be deleted by a fair opportunity notice? What if some initial bidders were found to be non-competitive, are they excluded from the fair opportunity notice? What if the proposed added or deleted terms and conditions, given a chance, would make them competitive?

File a protest under FAR 16.505(a)(10)(I)(A).  That is the proper recourse if a prospective offeror believes these things are happening and are unfair.

It is a simple fact that sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.

C Culham said:

Lets play this out.  The parent IDIQ contract has 52.216-18, still okay?  What about single award versus multiple award since the OP has not stated which type of IDIQ?   In either case does not the contractor(s) have a right to deny the additional clauses and if so what is the outcome with regard to their TO offer if they do not state agreement to the new clauses?

A contractor may reject an order if it does not conform to the parent contract.

A contractor may accept an order that contains additional clauses.  If a fair opportunity notice adds clauses, a contractor can address the impact of those clauses in its offer, if it chooses to submit one.

Neil Roberts said:

It would be helpful if some commenters could provide some regulatory and process discussion. At the moment I have no regulatory citations.  My reaction is the "parent" IDIQ contract is the only fair contract terms and they should not be altered by an order.

It seems to me that para. (b) of the contract clause at FAR 52.216-18, Ordering, clearly allows for orders with terms and conditions in addition to those in the parent contract.

ji20874 said:

It seems to me that para. (b) of the contract clause at FAR 52.216-18, Ordering, clearly allows for orders with terms and conditions in addition to those in the parent contract.

Correct, as long as they do not conflict with the parent IDIQ. Often it is necessary to add additional terms and conditions at the TO/DO level as they are specific to the work in the order where the parent IDIQ was more broad in nature to allow flexibility.

if the holder(s) of the parent IDIQ believe there is a conflict in the terms between the parent and an order. It should first point it out to the PCO, then if not resolved satisfactorily to the IDIQ ombudsman. It shouldn’t need to go higher than that to get the issue resolved, but if it does then a filing a protest may be necessary.

Interesting discussion but I’m not sure how pertinent it is to many situations.  The bulk of orders with added clauses are agency/office specific requirements.  For example, the clauses pertain to security, building access,  pre-clearance of contractor personnel, and complying with CIO/IT methodologies and operating constraints. They are added when placing orders against other agency contracts like MACs, GWACS, and GSA Schedules.  Those contracts usually make it clear agency clauses can be added to orders as long as they don’t conflict.  For example, this is from GSAs website on FAQs

Quote

6. Am I authorized to include FAR clauses on Schedule task orders?
Answer: Yes, but the additional clause(s) cannot negate any existing term and condition of the Schedule contract. Agencies routinely add specific clauses about security, payment processes, extension process, and options.

When an agency does they own IDIQ contracts, they usually consider the agency variety of needs and include all applicable contracts in the contract.  If something new comes up, they modify the contract so orders don’t add other clauses.

EDIT:  ji20874 and uva posted while I was responding.  I agree with both their posts.

An example could be a DoD agency order from a GSA schedule.  DoD is authorized to use such schedules but must comply with various DoD specific requirements.  

Same goes for other agencies using their ID/IQs for DoD. 

Recollection is that it is mandated by Statutes. For example see DFARS/ PGI for 208.4.

Management is requesting that I update the Master Agreement of the Requirements Contract to include all the latest FACs since the award of the contract in Jul 2018.  First off, it is a Multiple Award Task Order Contract (MATOC)...Contract not Agreement.  It is an IDIQ not a Requirements Contract.  I have never heard of updating clauses to a contract after award based on FACs, and I can find no requirement to do so.   I could understand updating and including specific clauses that should be added if required or needed.  He/she insists that the FAR and VAAR Clauses be updated based on FACS and any old clauses be rescinded.  Additionally, also out of my control, there are 49 Contract Holders.  I previously worked for DoD for 17 years.  I have been with the VA for a little more than 2 years.  I do not agree with this request.  The FAR is silent on this, but of course.  It isn't a requirement from my perspective.  Please advise.

Is FAR 52.216-18 included in the contract? Have task orders already been issued? When does the current POP end? Is the update being requested to be applicable via Task Orders on or after a certain date or by change notice to the contract? Would you agree to send the Contract Holders a summary of the contemplated changes for comment about acceptance via a Request for Information? Do you have this management request in writing?

Charlotte Nelson said:

The FAR is silent on this...

The FAR is not silent on this.  See FAR 1.108(d).

ji20874 said:

The FAR is not silent on this.  See FAR 1.108(d).

Hope you do not mind but I want to highlight the following -

FAR1.108(d)(3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.

Appropriate consideration may be none.

Retreadfed said:

Appropriate consideration may be none.

That's for the contractor to decide, right?

Retreadfed said:

Appropriate consideration may be none.

Well darn it here we go again as I always thought that with regard to contract law "consideration" is something of value.   None does not seem to me to have value.

https://thelawdictionary.org/consideration/

ji20874 said:

That's for the contractor to decide, right?

I think it is a matter of negotiation between the contractor and government.

C Culham said:

I always thought that with regard to contract law "consideration" is something of value.

Carl, you are missing the relevant word in the FAR "appropriate."  The contracting officer and contractor may agree that no consideration is appropriate in a particular circumstance.

GSA does this all the time with their multiple award schedule contracts.  They call the bilateral mods refresh/mass mods.

On 12/18/2019 at 12:42 PM, Charlotte Nelson said:

I have never heard of updating clauses to a contract after award based on FACs, and I can find no requirement to do so.

Charlotte, would you agree that your management has discretion for initiatives that are not illegal or immoral, or done in bad faith or unreasonable, etc?

The only requirement to add or revise clauses is when legislation or Executive Order requires it.  Usually the implementing FAC provides instructions.  That’s one type of revisions.  Another category of clause changes is when it’s desirable and beneficial.  Finally there’s a third group which is just to keep everything current.

You are only required to do the first.  If your management wants to do the second and third, they must have a reason.  Why don’t you just sit down with them and ask?  Do it saying you are curious, want to better understand the office and working policies, and it’s for your knowledge and future contributions you can make to the office by seeing how things work and why.  Above all don’t be confrontational and say you’ve never done it before in all your years.

Retreadfed said:

Carl, you are missing the relevant word in the FAR "appropriate."  The contracting officer and contractor may agree that no consideration is appropriate in a particular circumstance

Retreadfed - Actually how about removing the parenthetical phrase and then the sentence reads as follows -

Contracting officers may include the changes in any existing contract with appropriate consideration.

On 12/18/2019 at 2:42 PM, Charlotte Nelson said:

Management is requesting that I update the Master Agreement of the Requirements Contract to include all the latest FACs since the award of the contract in Jul 2018.  First off, it is a Multiple Award Task Order Contract (MATOC)...Contract not Agreement.  It is an IDIQ not a Requirements Contract.  I have never heard of updating clauses to a contract after award based on FACs, and I can find no requirement to do so.   I could understand updating and including specific clauses that should be added if required or needed.  He/she insists that the FAR and VAAR Clauses be updated based on FACS and any old clauses be rescinded.  Additionally, also out of my control, there are 49 Contract Holders.  I previously worked for DoD for 17 years.  I have been with the VA for a little more than 2 years.  I do not agree with this request.  The FAR is silent on this, but of course.  It isn't a requirement from my perspective.  Please advise.

Do these base contracts have priced line items? All? Most? Few? None?

C Culham said:

Contracting officers may include the changes in any existing contract with appropriate consideration.

This still gives the contracting officer discretion as to what would be appropirate under the circumstances.

Retreadfed said:

This still gives the contracting officer discretion as to what would be appropirate under the circumstances.

Doesn't the contractor have a say in this matter?  After all, both parties have to agree.

If the MATOC’s are pre-priced, discretionary revisions to clauses might or might not affect the Multiple award contract holders’ costs, leading to pricing issues. What a Pandora’s Box that could introduce! 

Knowing the government, most of those revisions may likely be additional requirements, not relief.

Retreadfed said:

This still gives the contracting officer discretion as to what would be appropirate under the circumstances.

Wait.....appropriate for what?   Including the changes in the contract or for consideration.  As ji notes placing the changes in the contract has to be by mutual agreement, bilateral modification in FAR language, where both parties agree on the changes to the contract or the modification just does not happen.  As such a bilateral modification of the terms of the contract accompanies consideration.  Both parties are making a promise and obligated to fulfill that promise. Therefore the consideration can not be "none".

joel hoffman said:

If the MATOC’s are pre-priced, discretionary revisions to clauses might or might not affect the Multiple award contract holders’ costs, leading to pricing issues. What a Pandora’s Box that could introduce! 

Knowing the government, most of those revisions may likely be additional requirements, not relief.

Probably too old school but I have always felt that any change even the dang blasted "administrative" changes folks like to push on a contractor cost money.

Changing the CO or COR - administrative change.   Wait you mean one CO or COR is just like the other in their administrative demands under the contract?

Changing funding -administrative change.   Wait you mean one fund is just like another when it comes to availability, appropriation bill approval, or at the worst sequestration?

As such I agree with your view Joel and would go a step further that even if the changes provided relief, say like reduced environmental constraints, there is something I am going to have to do business wise to fulfill the changed promise I made to perform.

C Culham said:

Probably too old school but I have always felt that any change even the dang blasted "administrative" changes folks like to push on a contractor cost money.

Changing the CO or COR - administrative change.   Wait you mean one CO or COR is just like the other in their administrative demands under the contract?

Changing funding -administrative change.   Wait you mean one fund is just like another when it comes to availability, appropriation bill approval, or at the worst sequestration?

As such I agree with your view Joel and would go a step further that even if the changes provided relief, say like reduced environmental constraints, there is something I am going to have to do business wise to fulfill the changed promise I made to perform.

If the line items are open to pricing per order (not just discounts off of a not to exceed contract unit price) AND if all pool members would theoretically be similarly affected by the changes, they can price orders to reflect the changed terms and conditions in a competitive environment.

Discretionary changes in clauses still require bilateral agreement, though - from all 49 contract holders. Ayyy-yiii. 

However, if line items are pre-priced, they usually can’t offer a higher unit price in an order, only the contract unit price or a discounted unit price. Then, we have a real problem and the government shouldn’t even try to make discretionary changes to clauses.

Thus, the OP should explain the impracticality of the directive to their boss.

I think that discretionary changes that affect 49 contract holders or some but not all of them should be considered out of scope

On 12/20/2019 at 3:47 PM, ji20874 said:

Doesn't the contractor have a say in this matter?

As I indicated earlier, both parties have a say in what the consideration will be.  However, the FAR only mentions the contracting officer.

C Culham said:

Both parties are making a promise and obligated to fulfill that promise.

I agree.  A promise for a promise is all that is required.  No change in the contract price, extended warranty, extra performance or things of that nature would be required in every circumstance.

I mentioned before GSA does bilateral modifications to contracts that add, delete, and change things including clauses.  There’s no additional consideration involved (except a contractor won't have a contract very long if they don’t accept.  A joke of mine).  The modification process is announced in the solicitation so all offerors/contractors are aware and agreed to upon award.  Then the argument about out of scope is dismissed.  

https://interact.gsa.gov/document/upcoming-refreshmass-mod-all-gsa-schedules-incorporate-clause-and-provision-updates-2

It seems that Charlotte's situation does not involve schedule contracts.

True.  But they are multiple award IDIQ type contracts.  I just bought that up as an example of an agency doing periodic contract refreshments and updates.

Charlotte hasn’t logged in since asking her question. Perhaps she gleaned sufficient advice from responses. However, it would be nice to know answers to my questions about how the 49 contracts are priced.

formerfed said:

True.  But they are multiple award IDIQ type contracts.  I just bought that up as an example of an agency doing periodic contract refreshments and updates.

Yep, if Charlotte’s supervisor thinks that these type contracts should be refreshed and updated, then the agency should state that in the original MATOC solicitation.