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  • Question

    Is it possible to add clauses that are not on the basic contract to a task/delivery order?


    Answer

    First in order to determine what is a supply versus services one cannot rely on their general intuition but must rely on the definitions provided in the FAR.  FAR 2.101 defines supplies and FAR 37.101 defines services as follows:
    Supplies” means all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing.

    Service contract means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply. A service contract may be either a nonpersonal or personal contract. It can also cover services performed by either professional or nonprofessional personnel whether on an individual or organizational basis. Some of the areas in which service contracts are found include the following:

    (1) Maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment.
    (2) Routine recurring maintenance of real property.
    (3) Housekeeping and base services.
    (4) Advisory and assistance services.
    (5) Operation of Government-owned equipment, real property, and systems.
    (6) Communications services.
    (7) Architect-Engineering (see Subpart 36.6).
    (8) Transportation and related services (see Part 47).
    (9) Research and development (see Part 35).
    Additionally, being an IDIQ contract for DOD it should contain the clause 252.216-7006 Ordering.  The clause states the following:
    ORDERING (MAY 2011)
     
    (a)  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 contract schedule. Such orders may be issued from __________ through ____________ [insert dates].
     
    (b)  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)(1)  If issued electronically, the order is considered “issued” when a copy has been posted to the Electronic Document Access system, and notice has been sent to the Contractor.
     
      (2)  If mailed or transmitted by facsimile, a delivery order or task order is considered “issued”when the Government deposits the order in the mail or transmits by facsimile. Mailing includes transmittal by U.S. mail or private delivery services.
     
      (3)  Orders may be issued orally only if authorized in the schedule. 
     
    As long as the basic IDIQ contract does not specifically prohibit the additional of other clauses, then there appears to be nothing that prohibits the ordering agencies from adding non-conflicting clauses from the FAR or from their agency’s FAR Supplements to the task order.  However, any changes in the task order from the basic contract would require you to negotiate those changes and could increase your line item pricing.

    However, one has to be concerned that by altering the terms and conditions of an IDIQ contract it may create a violation of CICA.  By adding service clauses to a supply contract and including new SCA wage rates, would you be altering the scope of a contract to the point that created an out of scope change? (i.e. if the basic contract was only written and synopsized as a supply contract then adding services, and the associated clauses, to that contract could be considered out of scope and therefore no task order could be written for the services.)  In considering the scope issue of a task order, you can review the GAO decision summarized below.

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    Ervin & Associates, Inc., B-279083, B-279219 (4/30/98). In deciding whether a task order is beyond the scope of the contract originally ordered, GAO will look to whether there is a material difference between the task order and that contract. MCI Telecomms. Corp., supra; see AT&T Communications, Inc. v. Wiley, Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993). Evidence of such a material difference is found by reviewing the circumstances attending the procurement that was conducted; examining any changes in the type of work, performance period, and costs between the contract as awarded and as modified by the task order, and considering whether the original contract solicitation adequately advised offerors of the potential for the type of task order issued. Ervin & Assocs., Inc., supra, at 8. The overall inquiry is “whether the modification is of a nature which potential offerors would reasonably have anticipated.” Neal R. Gross & Co., Inc., B-237434, Feb. 23, 1990, 90-1 CPD ¶ 212 at 3, cited in AT&T Communications, Inc. v. Wiltel, Inc., 1 F.3d at 1207.


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