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  • Question

    Can a task order have construction included, even if the umbrella has no constraction clauses in it? also, can we add the construction clauses to the TO?


    Answer

    First, the contracting officer should recognize that most important interpretation of contract requirements to him or her should be that of the Government Contracting Officer, not the contractor. 
     
    FAR 36.209 and FAR 36.606(c) prevent the A&E contractor from being awarded a  contract or task order for a construction project. See below for reference.
     
    1) 36.209 -- Construction Contracts With Architect-Engineer Firms. No contract for the construction of a project shall be awarded to the firm that designed the project or its subsidiaries or affiliates, except with the  approval of the head of the agency or authorized representative.
     
    2) 36.606 -- Negotiations.
    (c) The contracting officer shall inform the firm that no construction contract may be awarded to the firm that designed the project, except as provided in 36.209.
     
    The topic is also discussed in FAR Subpart 3.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. The A&E is by definition the government agent (designer of record) in the design-bid-build process and therefore cannot also serve as the contractor. That puts the A&E contractor in a position of personal gain and conflict of interest.
     
    As to your last question,  the clauses, terms and conditions of the "umbrella" or indefinite delivery contract are the controlling clauses and provisions for any task orders. Task orders cannot conflict with the umbrella contract by including construction requirements in a task order not authorized by the basic contract. This type action would be a potential  violation of the Competition in Contracting Act. Therefore, construction clauses should not be added to task orders only.
     


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