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  • Question

    Does this prohibit the Government from issuing a delivery order for the procurement of parts under this contract? If so does the procurement of parts under a task order prohibit the Government from requiring the parts to be separately priced?


    Answer

    The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.
     
    A contract may be deemed a “services contract” though it may include orders for supplies if its primary purpose is services.  
      FAR 37.000: This part applies to all contracts and orders for services regardless of the contract type or kind of service being acquired. 
      FAR 37.101: Service contract means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply. 
     
    As to disputes between the contractor and the Government, courts use the term “cardinal change” to describe changes that are beyond the scope of the contract. The test applied to determine whether work is within the scope is whether it would have been “fairly and reasonably within the contemplation of the parties when the contract was entered into.” (Freund v. United States, 260 U.S. 60 (1922) Here, it appears the parties contemplated orders for spare parts, since you cite spare parts as being identified in the contract scope itself.
     
    If the contract specifically allows orders for spare parts in the Schedule, it appears the Contractor is obligated to furnish them, subject to any ordering quantity or other limitations in the contract.
      FAR 52.216-18: (a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals designated in the Schedule…
      FAR 52.216-22: (b) The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule…”
     
    However, you should consult with your contracting officer and legal office for guidance as the contract may contain other language not cited here that could change this result.

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