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Which Clauses in the Basic Schedules Contract flow down to Task Orders Issued Against Those Contracts?

 

This is a frequently asked question we cover to some extent in our standard Using GSA Schedules for Professional Services seminar but our friends at the Department of Interior recently pointed out during one of our seminar sessions that there exists no discussion on this topic online (or at least nothing they could find).  Well, I can’t find it either!

In fact, the only mention of this I am aware of on any GSA site is on Section 3, Page 9 of the MAS Desk reference (Online here) where we state that clause 52.217-9 needs to be included in any RFQ when an agency wants to use options on their task orders.  If anyone reading this knows of another location on the GSA portal page (meaning within the gsa.gov domain) where this topic is discussed, please let me know.  I should note that this is not about the flow down of specific clauses from prime contractors to subcontractors.  That is a completely separate topic which is discussed in Clause 52.212-5 in the basic contract.

So assuming there’s not some magical place out there, I am going to take a stab at putting out some general thoughts on both what I believe flows down and what I believe an ordering officer will need to add to their RFQ.  Philosophically, I think it would be hard to argue that a clause required by statute or regulation doesn’t flow down to a task order.  For example, Clause 52.222-26 EQUAL OPPORTUNITY (MAR 2007) should most definitely flow down.  I mean, seriously, why would something explicitly required by the Code of Federal Regulations (41 CFR 60) suddenly not apply?  You would have the Christian Doctrine at play, anyway.  Other examples are the clauses for the Service Contract Act and small business set asides. 

The particular question DOI asked me is a bit hazier.  What about the standard Part 12 Clauses (52.212-1,-3, -4 and -5)?  I would say they definitely flow down.  Not only are many of the components of these “megaclauses” statutory or regulatory in nature but I would argue they are core terms and conditions of the basic contract that must apply to any task orders placed against that contract.  If you awarded a stand-alone Part 12/15 hybrid IDIQ contract, would you not enforce those standard clauses on your task orders?  I would!  For anything else, I would say evaluate in on a case by case basis and consult with legal counsel if there’s a question.  If you want a definitive answer on a specific clause, let us know and we’ll get our policy team engaged to help you.

So that’s what I think flows down.  So what does not flow down?  That list is a lot shorter and I believe it is really about those clauses which directly affect the management of the basic contract.  The most common example is the previously mentioned options clause (52.217-9).  The clause in the basic Schedule contract is about the options only for that contract.  If you need options clauses on your task order, you need to add that to your RFQ.  Another specific example is 52.217-8 OPTION TO EXTEND SERVICES (NOV 1990) or what I like to call the “six-month optional contract extension that saves me from a panic attack when someone drops the ball on a task order renewal” clause.  Do you want that in your task order?  Great!  Just remember to add it to your RFQ. 

But wait, you say.  If I start adding clauses to a task order, don’t I risk conflicting with the terms and conditions of the basic contract?  Why yes, you do.  In general, you are usually fine if you are adding other than Part 15 clauses, any clauses required by your agency supplement (e.g. the DFARS) or any local clauses/provisions necessary to make the task order function properly (security requirements, facility access procedures, government property issues, etc).  For more than you ever wanted to know about the topic of adding non-conflicting clauses, you can read our blog post on that topic here.

Anyone out there have an alternate opinion?  Let’s hear it!

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Comments

Steve Sizemore
<p>Just a bit more information on Dan&#39;s response to alldal above. &nbsp;52.237-3 is incorporated by reference into the Schedules and would automatically flow down to the order if needed. &nbsp;I do agree that it would have no effect at the contract level since nothing is being bought there, but would be in force at the order level as needed by the ordering activity. &nbsp;</p><p>Additionally, in adding to this discussion in general, Schedule contracts contain 52.216-18, ORDERING (OCT 1995) (DEVIATION II -- FEB 2007), which states in para b that: &nbsp;</p><div>&quot;All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.&quot;</div><div>&nbsp;</div><div>So we clearly see that the terms and conditions flow down to the order level, however it does take some discernment to distinguish between contract managment clauses that GSA would use and those that the ordering activity would have available for their use.</div>
Brad deMers
<p>While one could argue that <a href="http://sws.gsa.gov/sws-search/generateClauseBodyPdf.do?method=generateClauseBody&amp;solNo=VEZUUC1NQy0wMDA4NzQtQg==&amp;refreshNo=17&amp;clauseNo=52.217-8&amp;clauseType=O&amp;sequenceNo=0">52.217-8</a> IS included in the Task Order by a broad interpretation of <a href="http://sws.gsa.gov/sws-search/generateClauseBodyPdf.do?method=generateClauseBody&amp;solNo=VEZUUC1NQy0wMDA4NzQtQg==&amp;refreshNo=17&amp;clauseNo=52.216-18&amp;clauseType=D&amp;sequenceNo=2">52.216-18</a>&nbsp;(ref para b <em>&quot;All delivery orders or task orders are subject to the terms and conditions of this contract&quot;...)</em>, it would be prudent, as Mr. Powers advises, &nbsp;to include this one in the task order as one could argue the 52.217-8 in the FSS Contract applies to the <em>FSS</em> <em>Contract </em>and <u><strong>not </strong></u>the Task Order. &nbsp;</p><p>I would further argue that in light of &nbsp;<a href="http://www.gao.gov/decisions/bidpro/401472.htm">http://www.gao.gov/decisions/bidpro/401472.htm</a>&nbsp;one must also include the 6 month value of said option in the total Task Order price evaluation. &nbsp;While including that 6 month value may seem overkill (as pricing usually remains unchanged for that up to six month period) , GAO does not think so as quoted in the case <em>&quot;<span style="font-family: Verdana, Arial, Helvetica, sans-serif; font-size: 12px; line-height: 15.588889122009277px;">The option to extend the contract here under FAR clause 52.217-8 was not evaluated as part of the initial competition, so that the exercise of this option amounts to a contract extension beyond the scope of the contract, and therefore effectively constitutes a new procurement.&quot;</span></em></p><p>&nbsp;</p>