Can you change the CLIN type in a modification? If so, does this fall under modifications in the FAR.
Thanks for your great question.
While the FAR does not expressly state changing the contract type within a CLIN via a modification is not permissible, there are several other concerns that should be addressed prior to modifying the contract and documented within the contract file, such as:
If the ordering guide for an IDIQ states you can use T&M CLINS and you plan on placing an order off of it, that does not negate the requirement in FAR 16.601(d)(1) for the executing agency to prepare “a determination and findings that no other contract type is suitable. The determination and finding shall be-
- Signed by the contracting officer prior to the execution of the base period or any option periods of the contracts; and (ii) Approved by the head of the contracting activity prior to the execution of the base period when the base period plus any option periods exceeds three years.
- I would recommend that you consult with your legal office and your contracting team to ensure that a D&F was done to allow for using T&M CLINS at the order level and that they are in agreement that no other contract type is suitable.
Additionally I would recommend consulting your legal team since if this was a competitive order placed off a multiple award IDIQ changing the CLIN type from FFP after award changes the competitive playing field which may open your agency up for protests and may be a scope change.
Without knowing all of the specific details, here are some general rules about modifying CLIN types that must be followed by the DOD:
If the contract modification relates to an existing contract line (CLIN) item(s), the modification shall refer to those item numbers (see DFARS 204.7106(b)(1)). However, if the contracting officer decides to assign new identifications to existing contract or exhibit line items, the following rules apply (see DFARS 204.7106(b)(2)) —
- The original line item or subline item number may be used if the modification applies to the total quantity of the original line item or subline.
- The original line item or subline item number may be used if the modification makes only minor changes in the specifications of some of the items ordered on the original line item or subline item and the resulting changes in unit price can be averaged to provide a new single unit price for the total quantity.
- If the changes in the specifications make the item significantly distinguishable from the original item or the resulting changes in unit price cannot be averaged, create a new line item.
- If the modification affects only a partial quantity of an existing contract line item or subline item or exhibit line item and the change does not involve either the delivery date or the ship-to/mark-for data, the original contract line item or subline item or exhibit line item number shall remain with the unchanged quantity. Assign the changed quantity the next available number.
Overall, I recommend executing extreme caution before modifying this contract to add those types of CLINS to your order. There are times when the question becomes more about whether we should do “x”, than merely if it’s permissible in the regulations to do so.
Thanks again for your great question.