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Adding Provisions/Clauses to RFQs

This blog post describes the reasons Ordering Officers sometimes need to include provision/clauses from the FAR or from their agency's FAR Supplement in Schedule task orders.  When we say that ordering agencies may add "non-conflicting" provisions/clauses to their RFQs, what do we mean?  

1. Here is how to find clauses  already in the Schedule contracts. That's important because you want to ensure your order doesn't conflict with the Schedule contract terms. (You also don't need to put clauses in your order that are already in the Schedule contract.)

2. As you read the Schedule contract clauses, you will notice that the Schedule contracts contain the typical required FAR Part 12 clauses used for larger commercial contracts, including some clauses for IDIQ contracts.  The contracts also contain GSA and FAS clauses, mostly dealing with the administration of the Schedule contract and generally having very little impact on ordering.) The Schedule contracts are written for use by all Federal agencies and contain no clauses from any agency's FAR Supplement.  

3. Nothing in the FAR or in the Schedule contract prohibits ordering agencies from adding non-conflicting clauses from the FAR or from their agency FAR Supplements.  In fact, the 2010 MAS Desk Reference states:

- [page 31, top] "While GSA will not alter the terms and conditions of a Schedule contract in violation of CICA, nor alter the scope of a contract to meet an individual ordering activity's unique needs, an ordering activity may add terms to an order that do not conflict with the Schedule contract terms and conditions."
- [page 42, middle], ensure the following information is included in the order's RFQ] "Other pertinent information - such as agency-specific provisions and clauses that do not conflict with the Schedule contract clauses."
- [page 44, top] "Any additional requirements included in a Schedule order must not conflict with the scope of the Schedule contract.  Remember, orders must be for commercial items or services with the purview of Part 12, not just within the scope of a particular Schedule contract, to remain within scope."

4. In accordance with FAR 1.102(d) ordering activities may assume that since the practice of adding non-conflicting clauses to Schedule orders is not addressed in the FAR, nor prohibited by law, Executive orders, or regulation, that the practice is a permissible exercise of authority if in the best interest of the government.

5. Specifically for Schedule orders, FAR 8.404(b) states "The contracting officer, when placing an order or establishing a BPA, is responsible for applying the regulatory and statutory requirements applicable to the agency for which the order is placed or the BPA is established."  Those agency requirements are typically found in a clause matrix in the agency's FAR Supplement, with columns representing different types of contract actions (sometimes with threshold dollar amounts) and rows for clauses, some clauses being required for certain types of acquisitions with other clauses optional for certain procurement situations.  There are some “regulatory and statutory requirements applicable to the agency” that cannot be enforced without a clause.

6.  Ordering agencies are specifically authorized and directed to include clauses applicable to non-Schedule items when those items are mixed with Schedule items on Schedule orders. FAR 8.402(f) directs ordering agencies to ensure "all clauses applicable to items not on the GSA Schedule contract are included in the order."  Of course, there is nothing in the FAR limiting this task order clause authority only to the non-Schedule items on an order.

7. The GSA Schedule Contracting Officer has adopted a minimalist philosophy when it comes to adding FAR or GSA clauses where the inclusion of the clause is "as required" for a particular procurement situation.  The GSA CO (who has no knowledge of the particular requirements in an ordering agency's PWS) simply doesn't know if an ordering agency will need a particular situational clause.  The Schedule contract cannot and does not include clauses necessary for every possible agency requirement.  For example, maybe an ordering agency will be providing government-furnished property, material, or information to a Schedule contractor on a particular task order.  But the standardized Schedule contracts don't include FAR 52.245-1 "Government Property" or another property clause required for that possible situation. The Ordering Officer is responsible for protecting the Government's interests and for complying with all agency regulations.  There are many situations where that responsibility cannot be met without including a situational "as required" FAR or agency clause - - a clause for which the GSA Schedule contract CO cannot have reasonably foreseen the need. For example, options are permitted on task orders.  But how could an ordering agency exercise that authority without an options clause in the order (something like FAR 52.217-8 "Option to Extend Services")?  The options clause in the Schedule contract (providing for a base period of five years and up to three option period of five years each) is not useful for task orders and by its own terms applies only to the Schedule contract and not to any orders. Similarly, FAR and agency supplement clauses related to task order funding don't appear in the Schedule contracts.  (Why would they?) If an ordering activity needs a clause like FAR 52.232-18 "Availability of Funds," it's not going to get there unless the ordering activity includes it in the task order RFQ.

8.  When we say "non-conflicting clause", we mean:

a. An added FAR or agency clause that doesn't contradict a Schedule contract clause.  For example, terminations (for the government's convenience or for cause) are covered in the clause FAR 52.212-4, included in all Schedule contracts.  As a result, there is no authority for an ordering agency to include clauses like the non-commercial FAR 52.249-4 "Terminations for Convenience of the Government (Services)" because it contradicts a Schedule contract clause.  Another example of a subject covered in that same FAR clause is "changes."  An ordering authority would therefore be without authority to include a clause like FAR 52.243-3 "Changes - Time and Materials or Labor Hours" in a Schedule order.  These types of conflicts are most commonly seen in the inclusion of clauses contradicting the multiple subjects covered by the contract clause FAR 52.212-4.

b. An added FAR or agency clause without a usage limiting it to non-commercial acquisitions or where the clause usage doesn't prohibit the clause in a commercial acquisition.  For example, the clause FAR 52.223-6 "Drug Free Workplace" has a clause usage stating that it shall not be used in commercial acquisitions.  As a result, there is no authority for an ordering activity to include that clause in a Schedule order. (Remember that FAR 12.503 includes a list of statutes and Executive orders not applicable to commercial acquisitions.) Similarly, general (typically FAR Part 12) prohibitions regarding the inherent conflict with commercial acquisition and a general clause subject will deprive ordering agencies of clause authority in that broad subject area.

c. An added FAR or agency clause that is consistent with customary commercial practice (or for which a waiver has been granted).  In accordance with FAR 12.302, you will want to ensure that any clause you add (or where you tailor a FAR or agency clause in a way not in conflict with a Schedule contract clause) is supported with either (a) documentation in the order file showing that the language is consistent with customary commercial practice or (b) a waiver.  These waivers are not granted by the GSA Contracting Officer, but through the approval chain of the ordering activity.

d. Adding a clause typically addressed at an IDIQ's contract level, especially in pricing, could possibly conflict. Opportunities for this general type of conflict are usually rare.  If in doubt on these special situations, contact your GSA Schedule contract CO.  (To find the e-mail address and phone number for the GSA CO responsible for any particular GSA contract, go to GSA eLibrary and type in the contract number or contractor name in the search text box.)

9. Everything I said about "clauses" above also applies to FAR Part 52 (and your agency FAR supplement) "provisions" included in the RFQ for your Schedule task order/BPA.

[NOTE:  Original content created by Dave Clemens.  Edited by Dan Briest on 1/6/11.] 

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