Is it authorized to require subcontractors working for the Prime contractor under the IDIQ Engineering Services Contract to do construction work and to use Davis Bacon Wages because the contract uses R&D funds and not O&M funds? Do the funds matter when adding construction requirments to a service contract?
Based on the information provided, the type of funding DOES NOT change the legality of requiring subcontractors to complete "construction" requirements under an IDIQ Engineering Services contract. However, there are other contractual issues that do prevent the proposed action.
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1) The Government has NO authority to direct or "require" a subcontractor to perform any action under a prime contract. The government has NO privy of contract with a subcontractor.
2) Requirements that may legally be awarded under any IDIQ contract are limited by the "scope" of the contract. The scope of the contract is typically stated in the original contract documents including the statement of work or performance work statement. The scope is the original intent of the parties when the IDIQ was awarded. Question: does the IDIQ contract envision the award of "construction" task orders? Are construction task orders addressed specifically in the basic IDIQ contract? If no, then construction task orders cannot be issued regardless of the funding available. The contracting officer would have a conflict with the Competition in Contracting Act and at least FAR Part 6.
3) If the Engineering Services IDIQ contract includes requirements for Architect-Engineering services under FAR Subpart 36.6, then neither the prime nor the subcontractors can perform the construction effort under the existing IDIQ or a separate contract document. See FAR 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.
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