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  • Question

    Where can I look to provide case law or regulation regarding a first task order outside of FAR?


    Answer

    This response is based on the information provided.   The way your organization sets up the first task order CLIN solely to “record” an obligation via Line of Accounting and nothing else is interesting.  FAR 16.504(a) talks about furnishing a stated minimum quantity of supplies or services and it should be more than a nominal quantity.   So…the first task order is normally based on the very requirements/specification your IDIQ contract is designed to accomplish while meeting the Government’s binding obligation to purchase the contract minimum and thus bound the contractor in this IDIQ vehicle.  In my own experience, I did not personally create a first task order solely for fund the minimum of the IDIQ vehicle without any consideration (like receiving an item or service) nor observe such practice.  What I have done in the past is to award the IDIQ vehicle and concurrently issue a Task Order for the minimum quantity of goods or services (thus creating a binding agreement for both parties).

     

    That said…review the GAO’s Principles of Federal Appropriation Law (also known as a “Red Book”) by checking their website (https://www.gao.gov/legal/red-book/overview).  Specifically, review Chapter 7 of the Red Book entitled “Obligation of Appropriations”.   Chapter 7 provides a legal definition of an “obligation” and it talks about two different terms of obligation -- “creating” an obligation and “recording” an obligation.  Awarding an IDIQ contract with stated minimum is an act of “creating” an obligation.    “Recording” an obligation has a specific criteria which is derived from Subsection (a)(1) of 31USC1501 (Chapter 7, Section B of the Red Book), one of which must have evidence of a binding agreement (offer, acceptance, and consideration) calling for specific goods, real property, work or service in exchange for monetary consideration.  Here are a couple of case laws that deals with obligating minimum on IDIQ contracts for your consumption.  Federal Electric Corporation, ASBCA 11726, 68-1 BCA 6834, and Federal Electric Corporation v. United States, 486 F.2d 1377 (1973). 

     At the end of the day, your best resource of case law pertaining to your issue is your servicing legal office.  Best wishes

     

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