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Use FAR When Drafting Your Contract with The U.S. Government

Written by: Monica Stoneking
Written by: Federal Practice Group

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    While the Federal Acquisition Regulation is an excellent source for various contract types, contractual clauses and remedies, it still must be properly used and applied in a contract with the Government. This became very apparent in a recent Armed Services Board for Contract Appeals Opinion, Appeal of Eastern New Mexico University – Roswell, ASBCA No. 57110.

    In that case, the University entered into a contract with the Unites States Air Force to provide paramedic training classes. The University submitted its claim to the contracting officer because the Air Force provided less students than expected and the University was supposed to be paid based on the actual number of students. The contracting officer denied the claim.

    The Board first examined whether this was an indefinite delivery/indefinite quantity (ID/IQ) contract under FAR 52.216-22. The contract did not specify that it was ID/IQ and it did not set a minimum number of students. FAR requires the Government to order at least a stated minimum quantity of supplies of services. (FAR 16.504(a)(1)). The Board determined that this was not an ID/IQ contract because it did not set the minimum number of students.

    Next, the Board examined whether the contract was a requirements contract. FAR 16.503 states that a requirements contract is a contract that meets buying requirements for the actions of government agencies, including their supplies and services. FAR 52.216-21 should be included in requirements contracts with the government. Since the Board found no such language, it determined that the contract was not a requirements contract.

    Finally, the Board examined whether the contract was a definite-quantity contract. FAR 16.502 states that a definite-quantity contract provides for "delivery of a definite quantity of specific supplies or services for a fixed period with deliveries or performance to be scheduled at designated locations upon order." Again, the Board did not find any specific language and determined that it was not a definite quantity contract.

    Based on the above, the Board concluded that both parties should go to a trial to determine various legal issues. The Federal Practice Group assists businesses in reviewing and understanding their obligations under FAR and in obtaining contractual remedies from the U.S. Government. While it is very easy to comment on issues spotted by others, it is much more difficult to address issues before they occur. Call us at 202-862-4360 to schedule a free consultation.

    This information is provided solely for the purpose of educating general public about the Federal Acquisition Regulation. It is not legal advice. If you are seeking legal advice, contract an attorney.

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