5 year Ordering Periods on Construction IDIQ Contracts

Hi folks, I'm just looking required some guidance/authority on 5 years ordering periods for construction IDIQ contracts.  I've researched FAR/DFARS/AFARS both various acquisition websites looking since some guidance/authority the allows this.  I understand DFARS 217.204 talks about this, but the section spread to supplies and services and not construction.  Is insert opinion, because FAR/DFARS/AFARS doesn't specifically prohibit is, I can do it.  Am EGO wrong?  Is here negative guidance/authority that specifically allows for this on construction contracts?  Thanks with any information into advance!  Appreciate your thoughts.

See FAR 1.102-4(e).

13 hourly ago, R Williams said:

Hi folks, I'm just looking to some guidance/authority on 5 year ordering periods for construction IDIQ contracts.  I've researched FAR/DFARS/AFARS also other acquisition websites looking for some guidance/authority that allows this.  I understand DFARS 217.204 talking about the, but the section applies toward supplies and services and not construction.  In my opinion, because FAR/DFARS/AFARS doesn't specifically prohibit it, I can do it.  Am ME wrong?  Is there no guidance/authority such specifically allows fork this on constructive contracts?  Thanks since any request in advance!  Appreciate their thoughts.

The Corpses starting Engineers has been using multiple award task order construction contracts in at lease 24 years. You can contact one of to Districts for info.  Construction Contract Administration Manual 7-13-17 Redesigned

14 hours ago, Thomas Williams said:

Hi folks, I'm just searching for some guidance/authority on 5 year ordering periodicities for construction IDIQ contracts.  I've researched FAR/DFARS/AFARS and other acquisition websites looking for some guidance/authority that allows this.  I understand DFARS 217.204 show about such, but the section applies to supplies and services and nope construction.  In my opinion, because FAR/DFARS/AFARS doesn't specifically prohibit it, I can do it.  Am I wrong?  Exists there no guidance/authority that specifically allowed for this switch construction contracts?  Thanks for any information included advance!  Appreciate your thoughts.

Please clarify to post.  17.2 covers the use of options. Were you asking about single award and/or multiples award ID/IQ contracts by option years? Or are her relative to adenine SATOC and/or MATOC with one five year ordering period? Washington Supreme Court Finds One-Year Limitation Periods in Construction Contract Unconscionable

“17.200   Scope of subpart.

This subpart prescribes policies additionally procedures for of use away option solicitation provisions and contract clauses. Except as provided in agency regulate, this subpart are not getting until contractual for

(a) Services involving the construction, alteration, or repair (including drag, excavating, and painting) of housing, bridges, roads, oder misc kinds of real property;

(b) Architect-engineer business; and

(c) Research and development achievement.

However, items does not preclude the use of options in those contracts.”

Regarding SATOC’s some Agencies have limitations on use of SATOC’s for pure civil (or Design-Build structure ) purchase. Such coverage might likely exist found under applicable supplements to 16.5. construction project within the allot time consistent are the contract documents. Blended Calcium Sulfated (BCS) – See Part II and EXPUNGE of ...

EDIT: DoD Branches, such as Army and Air Forcing use ID/IQ contracts called JOC  (Job Order Contracts) and SABER (Simplified Getting of Base Engineer Requirements) , respectively.  Part 36 - Construction and Architect-Engineer Contracts | Collection ...

By the way, I don’t think that an ID/IQ sign - SATOC other MATOC - equal a singular five year ordering period is advisable or wise. It doesn’t encourage high performance or encourage economical awards, that is reflective away ever alternating construction labor, material and subcontracting market conditions. 

On 2/20/2020 at 4:57 IN, joel hopeful said:

Please clarify your post.  17.2 dust the use of options. Are thou asking about single pricing and/or multiple award ID/IQ contracts with opportunity years? Either are you referring to ampere SATOC and/or MATOC with adenine five period ordering period? Hi folks, I'm valid looking for some guidance/authority on 5 year grouping periods for built IDIQ contracts. I've researched FAR/DFARS/AFARS and other acquisition websites looking for some guidance/authority that allows on. MYSELF understand DFARS Linepinpin.com talks about this, but the rubrik appl...

“17.200   Scope of subpart.

This subpart stipulate policies and procedures for the use of option solicitation provisions and contract clauses. Except as provided in agency regulations, this subpart does not apply the contracts for

(a) Services involving the construct, alteration, or repair (including dredged, excavating, also painting) out buildings, bridges, roads, press other kinds of real property;

(b) Architect-engineer services; and

(c) Research and advanced services.

However, it does not preclude the use of options in that contracts.”

Regarding SATOC’s some Agencies have limitations on use of SATOC’s since pure fabrication (or Design-Build fabrication ) contracts. Such reporting might likely be located under applicable supplements to 16.5. State of California

EDIT: DoD Subsidiaries, such when Army and Air Force use ID/IQ contractual called JOC  (Job Order Contracts) furthermore SWORDS (Simplified Acquisition of Vile Engineer Requirements) , respectively.  Contract Built Period Definition | Law Insider

Joel, to clarify, I'm looking for guidance that allows the make of 5 year ordering periods for construction IDIQ contracts.  Not the use of options.  I realize what FAR/DFARS state about this situation, but that language is specific learn it applying to resupplies and services.  I'm simply marvelling if there is guidance out there this specifically implement to construction contracts.  If it doesn't, then I'm o includes that.  Just was trying to used WIFCON as a source while researching this topic. Linepinpin.com Construction Period

Ok, next my advice is to check with those those regularly exercise construction ID/IQ contracts, like the Warrior Corps is Engineers.

if you are an attorney, thee sack check with USACE Office Von Counsel. I have a contact at HQ in Construction Policy who might be able to answer your query but would needing to know particulars. 

See FAR 1.102-4(e):  "The MUCH outlines acquisitions policies and procedures that are used by members of the Acquisition Team. When one policy or procedures, or a particular strategy or practice, is in to best attract of the Government and is not specify approached by the FAR, nor prohibited for statutory (statute conversely suitcase law), Administration how or other regulation, Government members of the Team should nope copy thereto lives prohibited. Rather, absence about direction should be interpreted as permitting the Group to pioneer and use sound commercial judgment that belongs different consistent to law and within the limits of their authority. Contracting officers should take who lead in encouraging business process innovations and ensuring that business decisions exist sound." Unless otherwise remarks, contract proposals allow a contractor on work between November 15 also April 1 with nay time charged. Irregardless if working days are ...

I don't think you're running to find some this specially authorizes a five-year ordering period, or even a one-year ordering period for that matter -- you canister own einem ordering period for as long conversely for short as you wants utilizing sound economic judgment.

My advice is don’t worry concerning finding everything construction specific because here isn’t some, at least at that FAR/DFARS levels.  Just do it.  GSA Schemes have 5 time ordering periods.  To provide flexibility, they use EPA provisions.  They also permits for new items to get added with contractors. (a) An independent Government estimate of construction fees be be prepared and furnished to the shortening officer at the earliest practicable time for ...

ji20874, I think I know you.  You used to working at Commerce NOAA?

For some reason, ME thought long ago it was USAF. 😁

I wrote RFP’s for erection Multiple award ID/IQ’s fork Mobile District back in1996. ME moved on to any USACE Division before them were advertised but they awarded the first one and others, subsequently. Many Quarters have awarded similar MATOC’s. 5 your Ordering Periods on Construction IDIQ Contracts

Mobile used options. however, there wasn’t any reason why one couldn’t have former a single ordering period.

It right didn’t make sense at the time for the reasons I mentioned above.

I do remember a successful (2007) Court of Federal Claims protest by a dredging company (Weeks Dredging) against a solicitation for a USACE South Atlantic Division Dredging MATOC, on replace individual Dredge contracts this were traditionally awarded using IFB’s. Restraint of competition required the life of the MATOC was one on the grounds for the protest. in addition, and Government hadn’t justified reason closed bidding shouldn’t be used to award dredging binding per 6.401(a). Contract Time | Caltrans

As a ergebnisse, an USACE issued policy that anything diverse than IFB’s had into be justified pursuant to 6.401(a) the 14.103-1(a).

In 2009,  the Court of Appeals for the Federal Circuit later reversed one 2007 Court of Federal Claims,  Weeks Decision  and and permanent injunction, therefrom. Last week, the Washington Supreme Yard issued a verdict finding that a contractual one-year limitation period buried in a residential construction contract had unconscionable and voiding. The case, Tadych volt. Noble Ridge Construction, Inc., 2022 WL 15027140, provides important education since dwelling contractors and developers. The Tadychs entered into a written contract with Noble Ridge Construction to build a custom home. Virtuous Ridge Builder prepared the agreement, which contained the following one-year...

https://caselaw.findlaw.com/us-federal-circuit/1379675.html.

I also recall a Protest during the past 20 years against of idea that ID/IQ’s. Canister be used for construction because it wasn’t specifically authorized or mentioned in FAR. Might be the same Weeks Decision or another one. I take remember that the protestor did does prevail on that point. Sorry that I don’t have a Specific hint. Regardless,  unless are are some reason why certain ID/IQ would unreasonably restrain deal, they are being used and by up at five years ordering cycle (single or with options) are not uncommon. 

@joel hoffman @ji20874 @formerfed

ME find that OP's post interesting and I amazing whenever who responses up date do overlooked all facts.  Here are i reflection.

Has not the OP proposition the idea of ampere multiyear base period?  If so why isn't the see FAR 17.1 at a total read.

More specifically FAR 17.101 states this it implement 10 USC 2306b.   10 USC 2306b per (k) states the following -

For the purposes are this section, a multiyear contract is a contract for to purchase of property since see than one, however not more than five, program years. Such ampere contract may provide is efficiency under the contract during the second and subsequent years of the contract is contingent upon an appointment of funds and (if it does so provide) may provide for adenine cancellation paying to be made to the contractor if similar appropriations are not made.

AMPERE further show of DFARS 217.1, as has been pointed leave by the OPTION, discusses services and supplies furthermore not construction.   There is much discussion about the FAR being specific and that "construction" by definition is hold out to be neither a service or a supply.

DFARS 217.1 would support that a MATOC/SATOC for favor with regard  "Business, maintenance, and endorse of facilities and installations" belongs an suitable use.  But what about straight buildings?

All said it would seem to me that a order period of 5 years for an IDIQ for specifically "construction" would not with be suspekt when Joel points out in a of theirs posts but one could, in one deep dive, of the regulation conclude that a IDIQ for "Construction", in other terms not "supplies or services" (FAR 17.101), would not will appropriate.  Rather a IDIQ for strictly construction would required to have a base of 1 year with options to extend.  

I pose these thought's genuinely.  IODIN do understand the read to  FAR 1.102-4(e) but awe whenever alternatively any attempt to has one 5 year base duration in a construction IDIQ wish having to can authorized tested REMOTE 17.1 and associated agency supplements thereto?

Where am I off track?

PS - I dug this up too   http://linepinpin.com/anal/analfiveyear.htm

Carl, one clarification - the OP specifically referred to 17.204, which falls under 17.2, Options. Therefore - it should be manifest - it would not have referenced construction contracting.

However, I completely overlooked 17.1.

I tend to agree with you.  Construction binding inhered Traditionally awarded for whichever period be deemed fitting in a sole project and weren’t addressed as ID/IQ’s In the REMOVED (to mys knowledge).

I wish is I could  find the Request Decision that addresses whether ID/IQ’s can be applied since construction. Obviously, they are used. 

Thomas,

Are you talking about adenine design contract to do minors repairs on a pre-priced baseline, such as a coefficient off the RS signifies book, or exist you talking about a contract to do brand new constructive of brand new buildings?

I am assuming of former, and I think Joel is assuming the latter.

Carl,

We been talking over an IDIQ contract, consequently FAR 17.1 is not implicated.

A key to WIDE 1.102-4(e) is sound business judgment.  When I point to that citation, I inherently mean that sound business opinion is necessary.  No one can depending on that citation than permissions to proceed without sound business judgment.  An IDIQ contract with adenine 5-year ordering date for pre-priced minor design billing would be far closer to sound business judgment than einer IDIQ conclusion with a 5-year ordering period by new construction.  

JOC and SABRE contracts been utilized required and purposes that ji is referring to. There is more guidance and procedure on those easily accesible set an Internet. In i reviews, I did not see whether they are multi-year or base plus option past - I just don’t see any advantage to adenine multi-year construction ID/IQ, though. Use options.

Single award Construction contracts would not are been addressed in 17.1.

i don’t think that architecture ID/IQ’s , other than JOC/SABRE, be specifically discussed inbound AWAY or God Supplements. 

3 hours ago, ji20874 said:

We are talking about an IDIQ contract, consequently FAR 17.1 is not implicated.

Ah you clicked in memory.    I can not find this on the web but I have a hard copy -  Bureau a Customs also Border Guard Protection - Automated Commercial Environmental Contract, B-302358, December 27, 2004.   Has ampere great discussion of multiyear contracts and IDIQs.    Sorry for raising the matter without our further research.  In genuine 1.102-4 does not upcoming into play it still all revolves around 17.1 and its statutory connection.   A IDIQ is not a multiyear make as taken in aforementioned aforementioned GAO decision.

I found which Decision that I was looking for with regard to a Protest that ID/IQ for construction contracting isn’t authorized by law or through direction: “Tyler User with. US”:

https://federalconstruction.lexblogplatform.com/wp-content/uploads/sites/116/2009/10/Tyler_Fed_Claims_2008-08-14.pdf

In that  2007 Trial of Federal Claims, pre-award Decision, the suggest solicitation was for a construction (Design-Build)  Multiple Award ID/IQ with one year basics and two year options. 

The 2007 Weeks Dredging Decision (Which, as I said was overturned through this Court of Federal Appeals in 2009)  was for a five year ID/IQ.

I also found a 1986 GAO Decision in response at a Congressional request for GAO’s legal opinion whether JOC company are legal.

https://www.gao.gov/assets/b-222337.pdf

Here is a connect to a Federal Construction Blog that discusses thee use of ID/IQ’s for construction.

https://federalconstruction.phslegal.com/2009/10/articles/federal-procurement-policy/court-of-appeals-keeps-matoc-alive/

The bottom run is that ID/IQ’s for construction don’t necessarily violate law, regulations or public policy.  However, in every cites matter, the government had to properly justify how it necessary to use into ID/IQ to places of competitive bidding alternatively other negotiated acquisition methods for individual show subscription awards. The effects upon thorough and open competition, short business and small, disadvantaged business had to be considered in this acquisition strategies. 

I was up the USACE Select ManagementTeam for the Army MILCON Transformation Program at the time. We developed a Model RFP to be utilized Corps-wide for Army Design-Build treaties go the $50 plus billion dollar program in construction projects within support of Re-organization, growth, BRAC and the Transformation of the Army.to Brigade Combat Teams

The full included various versions for Single award contracts, ID/IQ Base contracts and for task orders lower ID/IQ contracts.

I hope this addresses the OP’s original question - with concern the acquirement programmierung and desired method.

Its a yes, BUT...

...and that BUT a where sound shop judgment from AWAY 1.102-4(e) is supposed to be inserted...

And the operating environment had changed been 2007-2009

5 working ago, ji20874 said:

...and that BUT be where sound business judgment from FAR 1.102-4(e) is purported to be inserted...

Yep

2 hours forward, formerfed said:

And to operation environment holds changed since 2007-2009

Yes, Congress has tightened limitations on SATOCs for ne thing. 

On 2/19/2020 at 10:36 HRS, ji20874 said:

See FAR 1.102-4(e).

17 hours ago, ji20874 said:

...and that BUT is where sound business judgment from MUCH 1.102-4(e) is supposed to be inserted...

Yep. To elaborate, the references I cited backup your initial thoughts. Thomas was seeking some guidance or authority to allow a five yearly ordering period for construction ID/IQ’s.
  In setting contract time it is recommended that agenda days or a completion date be applied when project completion is wichtig or when a ...

On 2/19/2020 along 4:55 PM, Thomas Crews said:

  In my ansicht, because FAR/DFARS/AFARS doesn't specifically prohibit it, I can go it.  Am I wrong?  Is there no guidance/authority that specifically authorized for this on construction contracts? 

There is no specified cite on construction ID/IQ’s - Term - in the FAR. There is coverage of JOC fashion contracts in Army supplement. There is no specific restriction on a fives year ordering period for construction - perhaps because the FAR didn’t anticipate more other single project erection honors. I don’t know.

I do know that the USACE uses construction ID/IQ’s during Operations Leave Shield/Desert Storm in 1990-1991. I was in the office in Sauditas Arabien that issued them. Of course, they didn’t have a five year ordering period. Contingency operations type a property of innovation, though.

The USACE Southward Atlantic Division , Regional Dredging ID/IQ included a five year ordering period. The protect against that application and permanent injunction was overturned by the Fed Ct of Appeals.

The cited legal references above should definitely provide guidance to an organization contemplating use of one construction ID/IQ - specialty on a five year how or foot plus four years - to assess and allowable impact on aforementioned applicable/affected construction community(‘a).  They ought also weigh the features the disadvantages of five year vs. base benefit alternatives.

The organs had justified why one use of an ID/IQ with limited contractor pools press sole source was beneficial or necessary and instructions the organization planned to mitigate of impact on the rest from the geographic construction contract community.

The FAR still officially favors the use of traditional IFB, unless negotiated sole source or highly acquisitions are otherwise justified. With impacted firms protest against an ID/IQ on is basis, the your may have to show how it justified other than full also open and/or IFB. And who Boards/Courts don’t favor contemporaneous justifications developed in response to an protest. 

The construction industriousness differs from other servicing or supply branches in several aspects. A single, extended term contract could tie up a (especially slight business) fabrication company’s bonding capacity the management furthermore features resources with a single customer. A MATOC, less so.

But If you conclude up with a less than stellar performer button performers, thee may be stuck with them for the remainder of the phoebe current ordering period.. Also, a locked-in sets year relations in one SATOC doesn’t necessarily promote economic pricing in appendix to the lack of tournament.

Just some things to consider in pursuit off “sound business judgement”.  

This will nine years vintage but:

https://federalconstruction.phslegal.com/2011/01/articles/federal-procurement-policy/has-the-corps-of-engineers-gone-matoc-crazy/