Sign In
  • Question

    The changes to the scope that are desired pertaining to issues like Testing, Obsolescence, Warranty, and Repair Turn-Around-Time. There is even some interest in accepting some "Request For Variance(s)" that would pertain to the Specification rather than the Scope of Work. Can any of these be accommodated after the base IDIQ contract has expired? If so what clauses/policies should I be reviewing?


    Answer

    The answer is maybe, but certain conditions would need to be true.  First, the delivery orders need to have been issued before the IDIQ contract expired.  Also, the delivery orders need to "be within scope, issued within the period of performance, and be within the maximum value of the contract." (FAR 16.505(a)).   The FAR does not require for the order completion date to be within the ordering period of the contract.  Only that the order be awarded within the contract’s stated ordering period.  FAR clause 52.216-22 -- Indefinite Quantity should be in your contract if it's IDIQ.  The Indefinite Quantity clause also makes pretty clear that the delivery order's period of performance can extend beyond the contract's ordering period .  It reads, “any order issued during the effective period…but not completed within that period shall be completed within the time specified in the order. The contract shall govern the Contractor's and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after _______________ [insert date]. ”)  A blank date for the fill-in shouldn’t be an issue as long as the government and contractor mutually agree to a completion date for the delivery order(s)

    You, also, want to make sure that sufficient funds are available, and the delivery order's period of performance does NOT violate fiscal constraints for use of Procurement funds (I'm assuming the contract is funded with Procurement since you said it's a production contract).  For example, Procurement funds for new obligations are only current for three years.   As far as changes to the scope of work, that is always a concern and would require a written scope determination from the Contracting Officer and a review by legal to ensure any laws, such as the Competition in Contracting Act, are not violated.  I'm unclear about what you mean by "Request for Variance".  My guess is that you're talking about the FAR 52.211-16 Variation in Quantity clause or the DFARS 252.234-7002 Earned Value Management System clause (for over-target performance variance requests?).  If so, as long as the clauses are in the contract (see below for full text of both clauses), and any approved variances comply with the requirements of applicable clause, it should be okay.    However, I strongly recommend discussing any changes to the scope, performance period and/or funding of a delivery order with your Contracting officer, legal advisor and Comptroller. 

    52.211-16 Variation in Quantity.

    As prescribed in 11.703(a), insert the following clause:

    Variation in Quantity (Apr 1984)      (a) A variation in the quantity of any item called for by this contract will not be accepted unless the variation has been caused by conditions of loading, shipping, or packing, or allowances in manufacturing processes, and then only to the extent, if any, specified in paragraph (b) of this clause.

          (b) The permissible variation shall be limited to:

          ___ Percent increase [Contracting Officer insert percentage]

          ___ Percent decrease [Contracting Officer insert percentage]

         This increase or decrease shall apply to ____________.*

         * Contracting Officer shall insert in the blank the designation(s) to which the percentages apply, such as-

               (1) The total contract quantity;

               (2) Item1 only;

               (3) Each quantity specified in the delivery schedule;

               (4) The total item quantity for each destination; or

               (5) The total quantity of each item without regard to destination.

    (End of clause)

     

    252.234-7002 Earned Value Management System.

    As prescribed in 234.203 (2), use the following clause:

    EARNED VALUE MANAGEMENT SYSTEM (MAY 2011)

    (a) Definitions. As used in this clause——

    “Acceptable earned value management system” means an earned value management system that generally complies with system criteria in paragraph (b) of this clause.

    “Earned value management system” means an earned value management system that complies with the earned value management system guidelines in the ANSI/EIA-748.

    “Significant deficiency” means a shortcoming in the system that materially affects the ability of officials of the Department of Defense to rely upon information produced by the system that is needed for management purposes.

    (b) System criteria. In the performance of this contract, the Contractor shall use—

    (1) An Earned Value Management System (EVMS) that complies with the EVMS guidelines in the American National Standards Institute/Electronic Industries Alliance Standard 748, Earned Value Management Systems (ANSI/EIA-748); and

    (2) Management procedures that provide for generation of timely, reliable, and verifiable information for the Contract Performance Report (CPR) and the Integrated Master Schedule (IMS) required by the CPR and IMS data items of this contract.

    (c) If this contract has a value of $50 million or more, the Contractor shall use an EVMS that has been determined to be acceptable by the Cognizant Federal Agency (CFA). If, at the time of award, the Contractor’s EVMS has not been determined by the CFA to be in compliance with the EVMS guidelines as stated in paragraph (b)(1) of this clause, the Contractor shall apply its current system to the contract and shall take necessary actions to meet the milestones in the Contractor’s EVMS plan.

    (d) If this contract has a value of less than $50 million, the Government will not make a formal determination that the Contractor’s EVMS complies with the EVMS guidelines in ANSI/EIA-748 with respect to the contract. The use of the Contractor’s EVMS for this contract does not imply a Government determination of the Contractor’s compliance with the EVMS guidelines in ANSI/EIA-748 for application to future contracts. The Government will allow the use of a Contractor’s EVMS that has been formally reviewed and determined by the CFA to be in compliance with the EVMS guidelines in ANSI/EIA-748.

    (e) The Contractor shall submit notification of any proposed substantive changes to the EVMS procedures and the impact of those changes to the CFA. If this contract has a value of $50 million or more, unless a waiver is granted by the CFA, any EVMS changes proposed by the Contractor require approval of the CFA prior to implementation. The CFA will advise the Contractor of the acceptability of such changes as soon as practicable (generally within 30 calendar days) after receipt of the Contractor’s notice of proposed changes. If the CFA waives the advance approval requirements, the Contractor shall disclose EVMS changes to the CFA at least 14 calendar days prior to the effective date of implementation.

    (f) The Government will schedule integrated baseline reviews as early as practicable, and the review process will be conducted not later than 180 calendar days after—

    (1) Contract award;

     

    (2) The exercise of significant contract options; and

     

    (3) The incorporation of major modifications.

    During such reviews, the Government and the Contractor will jointly assess the Contractor’s baseline to be used for performance measurement to ensure complete coverage of the statement of work, logical scheduling of the work activities, adequate resourcing, and identification of inherent risks.

    (g) The Contractor shall provide access to all pertinent records and data requested by the Contracting Officer or duly authorized representative as necessary to permit Government surveillance to ensure that the EVMS complies, and continues to comply, with the performance criteria referenced in paragraph (b) of this clause.

    (h) When indicated by contract performance, the Contractor shall submit a request for approval to initiate an over-target baseline or over-target schedule to the Contracting Officer. The request shall include a top-level projection of cost and/or schedule growth, a determination of whether or not performance variances will be retained, and a schedule of implementation for the rebaselining. The Government will acknowledge receipt of the request in a timely manner (generally within 30 calendar days).

    (i) Significant deficiencies. (1) The Contracting Officer will provide an initial determination to the Contractor, in writing, of any significant deficiencies. The initial determination will describe the deficiency in sufficient detail to allow the Contractor to understand the deficiency.

    (2) The Contractor shall respond within 30 days to a written initial determination from the Contracting Officer that identifies significant deficiencies in the Contractor's EVMS. If the Contractor disagrees with the initial determination, the Contractor shall state, in writing, its rationale for disagreeing.

    (3) The Contracting Officer will evaluate the Contractor's response and notify the Contractor, in writing, of the Contracting Officer’s final determination concerning—

    (i) Remaining significant deficiencies;

    (ii) The adequacy of any proposed or completed corrective action;

    (iii) System noncompliance, when the Contractor’s existing EVMS fails to comply with the earned value management system guidelines in the ANSI/EIA-748; and

    (iv) System disapproval, if initial EVMS validation is not successfully completed within the time frame approved by the Contracting Officer, or if the Contracting Officer determines that the Contractor's earned value management system contains one or more significant deficiencies in high-risk guidelines in ANSI/EIA-748 standards (guidelines 1, 3, 6, 7, 8, 9, 10, 12, 16, 21, 23, 26, 27, 28, 30, or 32). When the Contracting Officer determines that the existing earned value management system contains one or more significant deficiencies in one or more of the remaining 16 guidelines in ANSI/EIA-748 standards, the Contracting Officer will use discretion to disapprove the system based on input received from functional specialists and the auditor.

    (4) If the Contractor receives the Contracting Officer’s final determination of significant deficiencies, the Contractor shall, within 45 days of receipt of the final determination, either correct the significant deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the significant deficiencies.

    (j) Withholding payments. If the Contracting Officer makes a final determination to disapprove the Contractor’s EVMS, and the contract includes the clause at 252.242-7005 , Contractor Business Systems, the Contracting Officer will withhold payments in accordance with that clause.

    (k) With the exception of paragraphs (i) and (j) of this clause, the Contractor shall require its subcontractors to comply with EVMS requirements as follows:

    (1) For subcontracts valued at $50 million or more, the following subcontractors shall comply with the requirements of this clause:

    [Contracting Officer to insert names of subcontractors (or subcontracted effort if subcontractors have not been selected) designated for application of the EVMS requirements of this clause.]

    (2) For subcontracts valued at less than $50 million, the following subcontractors shall comply with the requirements of this clause, excluding the requirements of paragraph (c) of this clause:

    [Contracting Officer to insert names of subcontractors (or subcontracted effort if subcontractors have not been selected) designated for application of the EVMS requirements of this clause.]

    (End of clause)

    Open full Question Details
Chat with DAU Assistant
Bot Image