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
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.