Is it necessary to add an estimate of over and above hours and a compettively established composite unit price per hour at the basic contract level or should the FFP be negotiated and establlished independently when individual or blanket over and above work requests are submitted by the contractor to the ACO?
Would the negotiated over & above work request FFP need to be added to the basic contract via SLIN to then be ordered, or could it be establised at a task order level via priced SLIN if there is an INFO CLIN at the basic level to order from?
First, a qualifier – the agency/command legal advisor and the Contracting Office should be in concert regarding the selected method for the solicitation, award and administration regarding over and above requirements – either as an initial part of the contract or as an add on when the need arises. However the below listed references will provide policy and guidance from the FAR, DFARS and the DFARS PGI.
Our “opinion” is that competition could establish the fair and reasonable price for the FFP labor rates set in a solicitation and subsequent contract as a separate contract line item number (CLIN) accomplishing the over and above work. A second CLIN could be established as cost reimbursable (CR) line for necessary requirements such as parts or material – unless these parts and/or material can be separately priced on a fixed price basis. The CR CLIN could be estimated by the Government for uniform purposes at the solicitation and for Government budget purposes based on historical data (if available). NOTE: This is only a method – for over and above, not regulatory or policy driven and should be determined based on the capabilities of viable industry partners and the needs of the Government.
FAR Subpart 1.602-2 -- Responsibilities.
Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment.
DFARS 217.7701 - Procedures (References DFARS PGI 217.7701)
DFARS Contract Clause 252.217.7028 (Prescribed at DFARS 217.7702)
DFARS PGI 217.77--OVER AND ABOVE WORK
DFARS PGI 217.7701 Procedures.
(1) Contracts for the performance of maintenance, overhaul, modification, and repair of various items (e.g., aircraft, engines, ground support equipment, ships) generally contain over and above work requirements. When they do, the contracting officer shall establish a separate contract line item for the over and above work.
(2) Over and above requirements task the contractor to identify needed repairs and recommend corrective action during contract performance. The contractor submits a work request to identify the over and above work and, as appropriate, the Government authorizes the contractor to proceed.
(3) The clause at DFARS 252.217-7028, Over and Above Work, requires the contractor and the contracting officer responsible for administering the contract to negotiate specific procedures for Government administration and contractor performance of over and above work requests.
(4) The contracting officer may issue a blanket work request authorization describing the manner in which individual over and above work requests will be administered and setting forth a dollar limitation for all over and above work under the contract. The blanket work request authorization may be in the form of a letter or contract modification (Standard Form 30).
(5) Over and above work requests are within the scope of the contract. Therefore, procedures in DFARS Subpart 217.74, Undefinitized Contractual Actions, do not apply.
(6) To the maximum extent practical, over and above work shall be negotiated prior to performance of the work.
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