Part 16 - Types of Contracts

16.000 Scope of part.

16.001 Definitions.

Subpart 16.1 - Selecting Contract Types

16.101 General.

16.102 Policies.

16.103 Negotiating contract type.

16.104 Factors in selecting contract types.

16.105 Solicitation provision.

Subpart 16.2 - Fixed-Price Contracts

16.201 General.

16.202 Firm-fixed-price contracts.

16.202-1 Description.

16.202-2 Application.

16.203 Fixed-price contracts with economic price adjustment.

16.203-1 Description.

16.203-2 Application.

16.203-3 Limitations.

16.203-4 Contract clauses.

16.204 Fixed-price incentive contracts.

16.205 Fixed-price contracts with prospective price redetermination.

16.205-1 Description.

16.205-2 Application.

16.205-3 Limitations.

16.205-4 Contract clause.

16.206 Fixed-ceiling-price contracts with retroactive price redetermination.

16.206-1 Description.
16.206-2 Application.

16.206-3 Limitations.

16.206-4 Contract clause.

16.207 Firm-fixed-price, level-of-effort term contracts.

16.207-1 Description.

16.207-2 Application.

16.207-3 Limitations.

Subpart 16.3 - Cost-Reimbursement Contracts

16.301 General.

16.301-1 Description.

16.301-2 Application.

16.301-3 Limitations.

16.302 Cost contracts.

16.303 Cost-sharing contracts.

16.304 Cost-plus-incentive-fee contracts.

16.305 Cost-plus-award-fee contracts.

16.306 Cost-plus-fixed-fee contracts.

16.307 Contract clauses.

Subpart 16.4 - Incentive Contracts

16.401 General.

16.402 Application of predetermined, formula-type incentives.

16.402-1 Cost incentives.

16.402-2 Performance incentives.

16.402-3 Delivery incentives.

16.402-4 Structuring multiple-incentive contracts.

16.403 Fixed-price incentive contracts.

16.403-1 Fixed-price incentive (firm target) contracts.

16.403-2 Fixed-price incentive (successive targets) contracts.
16.404 Fixed-price contracts with award fees.

16.405 Cost-reimbursement incentive contracts.

16.405-1 Cost-plus-incentive-fee contracts.

16.405-2 Cost-plus-award-fee contracts.

16.406 Contract clauses.

Subpart 16.5 - Indefinite-Delivery Contracts

16.500 Scope of subpart.

16.501 [Reserved]

16.501-1 Definitions.

16.501-2 General.

16.502 Definite-quantity contracts.

16.503 Requirements contracts.

16.504 Indefinite-quantity contracts.

16.505 Ordering.

16.506 Solicitation provisions and contract clauses.

Subpart 16.6 - Time-and-Materials, Labor-Hour, and Letter Contracts

16.600 Scope.

16.601 Time-and-materials contracts.

16.602 Labor-hour contracts.

16.603 Letter contracts.

16.603-1 Description.

16.603-2 Application.

16.603-3 Limitations.

16.603-4 Contract clauses.

Subpart 16.7 - Agreements

16.701 Scope.

16.702 Basic agreements.

16.703 Basic ordering agreements.
Parent topic: Federal Acquisition Regulation

16.000 Scope of part.

This part describes types of contracts that may be used in acquisitions. It prescribes policies and

procedures and provides guidance for selecting a contract type appropriate to the circumstances of

the acquisition.

16.001 Definitions.

As used in this partAward-Fee Board means the team of individuals identified in the award-fee plan who have been

designated to assist the Fee-Determining Official in making award-fee determinations.

Established price means a price that—

(1) Is an established catalog or market price for a commercial product sold in substantial quantities

to the general public; and

(2) Is the net price after applying any standard trade discounts offered by the contractor.

Fee-Determining Official (FDO) means the designated Agency official(s) who reviews the

recommendations of the Award-Fee Board in determining the amount of award fee to be earned by

the contractor for each evaluation period.

Rollover of unearned award fee means the process of transferring unearned award fee, which the

contractor had an opportunity to earn, from one evaluation period to a subsequent evaluation period,

thus allowing the contractor an additional opportunity to earn that previously unearned award fee.

Subpart 16.1 - Selecting Contract Types

16.101 General.

(a) A wide selection of contract types is available to the Government and contractors in order to

provide needed flexibility in acquiring the large variety and volume of supplies and services required

by agencies. Contract types vary according to-

(1) The degree and timing of the responsibility assumed by the contractor for the costs of

performance; and

(2) The amount and nature of the profit incentive offered to the contractor for achieving or

exceeding specified standards or goals.

(b) The contract types are grouped into two broad categories: fixed-price contracts (see subpart 

16.2) and cost-reimbursement contracts (see subpart 16.3). The specific contract types range from

firm-fixed-price, in which the contractor has full responsibility for the performance costs and
resulting profit (or loss), to cost-plus-fixed-fee, in which the contractor has minimal responsibility for

the performance costs and the negotiated fee (profit) is fixed. In between are the various incentive

contracts (see subpart 16.4), in which the contractor’s responsibility for the performance costs and

the profit or fee incentives offered are tailored to the uncertainties involved in contract

performance.

16.102 Policies.

(a) Contracts resulting from sealed bidding shall be firm-fixed-price contracts or fixed-price

contracts with economic price adjustment.

(b) Contracts negotiated under part 15 may be of any type or combination of types that will promote

the Government’s interest, except as restricted in this part (see 10 U.S.C. 3321(a) and 41

U.S.C.3901). Contract types not described in this regulation shall not be used, except as a deviation

under subpart 1.4.

(c) The cost-plus-a-percentage-of-cost system of contracting shall not be used (see 10 U.S.C. 3322(a)

and 41 U.S.C.3905(a)). Prime contracts (including letter contracts) other than firm-fixed-price

contracts shall, by an appropriate clause, prohibit cost-plus-a-percentage-of-cost subcontracts (see

clauses prescribed in subpart 44.2 for cost-reimbursement contracts and subparts 16.2 and 16.4 for

fixed-price contracts).

(d) No contract may be awarded before the execution of any determination and findings (D&F’s)

required by this part. Minimum requirements for the content of D&F’s required by this part are

specified in 1.704.

16.103 Negotiating contract type.

(a) Selecting the contract type is generally a matter for negotiation and requires the exercise of

sound judgment. Negotiating the contract type and negotiating prices are closely related and should

be considered together. The objective is to negotiate a contract type and price (or estimated cost

and fee) that will result in reasonable contractor risk and provide the contractor with the greatest

incentive for efficient and economical performance.

(b) A firm-fixed-price contract, which best utilizes the basic profit motive of business enterprise,

shall be used when the risk involved is minimal or can be predicted with an acceptable degree of

certainty. However, when a reasonable basis for firm pricing does not exist, other contract types

should be considered, and negotiations should be directed toward selecting a contract type (or

combination of types) that will appropriately tie profit to contractor performance.

(c) In the course of an acquisition program, a series of contracts, or a single long-term contract,

changing circumstances may make a different contract type appropriate in later periods than that

used at the outset. In particular, contracting officers should avoid protracted use of a costreimbursement or time-and-materials contract after experience provides a basis for firmer pricing.

(d)

(1) Each contract file shall include documentation to show why the particular contract type was

selected. This shall be documented in the acquisition plan, or in the contract file if a written
acquisition plan is not required by agency procedures.

(i) Explain why the contract type selected must be used to meet the agency need.

(ii) Discuss the Government’s additional risks and the burden to manage the contract type selected

(e.g., when a cost-reimbursement contract is selected, the Government incurs additional cost risks,

and the Government has the additional burden of managing the contractor’s costs). For such

instances, acquisition personnel shall discuss –

(A) How the Government identified the additional risks (e.g., pre-award survey, or past performance

information);

(B) The nature of the additional risks (e.g., inadequate contractor’s accounting system, weaknesses

in contractor's internal control, non-compliance with Cost Accounting Standards, or lack of or

inadequate earned value management system); and

(C) How the Government will manage and mitigate the risks.

(iii) Discuss the Government resources necessary to properly plan for, award, and administer the

contract type selected (e.g., resources needed and the additional risks to the Government if

adequate resources are not provided).

(iv) For other than a firm-fixed price contract, at a minimum the documentation should include –

(A) An analysis of why the use of other than a firm-fixed-price contract (e.g., cost reimbursement,

time and materials, labor hour) is appropriate;

(B) Rationale that detail the particular facts and circumstances (e.g., complexity of the

requirements, uncertain duration of the work, contractor’s technical capability and financial

responsibility, or adequacy of the contractor’s accounting system), and associated reasoning

essential to support the contract type selection;

(C) An assessment regarding the adequacy of Government resources that are necessary to properly

plan for, award, and administer other than firm-fixed-price contracts; and

(D) A discussion of the actions planned to minimize the use of other than firm-fixed-price contracts

on future acquisitions for the same requirement and to transition to firm-fixed-price contracts to the

maximum extent practicable.

(v) A discussion of why a level-of-effort, price redetermination, or fee provision was included.

(2) Exceptions to the requirements at (d)(1) of this section are –

(i) Fixed-price acquisitions made under simplified acquisition procedures;

(ii) Contracts on a firm-fixed-price basis other than those for major systems or research and

development; and

(iii) Awards on the set-aside portion of sealed bid partial set-asides for small business.

16.104 Factors in selecting contract types.
There are many factors that the contracting officer should consider in selecting and negotiating the

contract type. They include the following:

(a) Price competition. Normally, effective price competition results in realistic pricing, and a fixedprice contract is ordinarily in the Government’s interest.

(b) Price analysis. Price analysis, with or without competition, may provide a basis for selecting the

contract type. The degree to which price analysis can provide a realistic pricing standard should be

carefully considered. (See 15.404-1(b).)

(c) Cost analysis. In the absence of effective price competition and if price analysis is not sufficient,

the cost estimates of the offeror and the Government provide the bases for negotiating contract

pricing arrangements. It is essential that the uncertainties involved in performance and their

possible impact upon costs be identified and evaluated, so that a contract type that places a

reasonable degree of cost responsibility upon the contractor can be negotiated.

(d) Type and complexity of the requirement. Complex requirements, particularly those unique to the

Government, usually result in greater risk assumption by the Government. This is especially true for

complex research and development contracts, when performance uncertainties or the likelihood of

changes makes it difficult to estimate performance costs in advance. As a requirement recurs or as

quantity production begins, the cost risk should shift to the contractor, and a fixed-price contract

should be considered.

(e) Combining contract types. If the entire contract cannot be firm-fixed-price, the contracting

officer shall consider whether or not a portion of the contract can be established on a firm-fixedprice basis.

(f) Urgency of the requirement. If urgency is a primary factor, the Government may choose to

assume a greater proportion of risk or it may offer incentives tailored to performance outcomes to

ensure timely contract performance.

(g) Period of performance or length of production run. In times of economic uncertainty, contracts

extending over a relatively long period may require economic price adjustment or price

redetermination clauses.

(h) Contractor’s technical capability and financial responsibility.

(i) Adequacy of the contractor's accounting system. Before agreeing on a contract type other than

firm-fixed-price, the contracting officer shall ensure that the contractor’s accounting system will

permit timely development of all necessary cost data in the form required by the proposed contract

type. This factor may be critical–

(1) When the contract type requires price revision while performance is in progress; or

(2) When a cost-reimbursement contract is being considered and all current or past experience with

the contractor has been on a fixed-price basis. See 42.302(a)(12).

(j) Concurrent contracts. If performance under the proposed contract involves concurrent operations

under other contracts, the impact of those contracts, including their pricing arrangements, should

be considered.

(k) Extent and nature of proposed subcontracting. If the contractor proposes extensive

subcontracting, a contract type reflecting the actual risks to the prime contractor should be
selected.

(l) Acquisition history. Contractor risk usually decreases as the requirement is repetitively acquired.

Also, product descriptions or descriptions of services to be performed can be defined more clearly.

16.105 Solicitation provision.

The contracting officer shall complete and insert the provision at 52.216-1, Type of Contract, in a

solicitation unless it is for-

(a) A fixed-price acquisition made under simplified acquisition procedures; or

(b) Information or planning purposes.

Subpart 16.2 - Fixed-Price Contracts

16.201 General.

(a) Fixed-price types of contracts provide for a firm price or, in appropriate cases, an adjustable

price. Fixed-price contracts providing for an adjustable price may include a ceiling price, a target

price (including target cost), or both. Unless otherwise specified in the contract, the ceiling price or

target price is subject to adjustment only by operation of contract clauses providing for equitable

adjustment or other revision of the contract price under stated circumstances. The contracting

officer shall use firm-fixed-price or fixed-price with economic price adjustment contracts when

acquiring commercial products and commercial services, except as provided in 12.207(b).

(b) Time-and-materials contracts and labor-hour contracts are not fixed-price contracts.

16.202 Firm-fixed-price contracts.

16.202-1 Description.

A firm-fixed-price contract provides for a price that is not subject to any adjustment on the basis of

the contractor’s cost experience in performing the contract. This contract type places upon the

contractor maximum risk and full responsibility for all costs and resulting profit or loss. It provides

maximum incentive for the contractor to control costs and perform effectively and imposes a

minimum administrative burden upon the contracting parties. The contracting officer may use a

firm-fixed-price contract in conjunction with an award-fee incentive (see 16.404) and performance or

delivery incentives (see 16.402-2 and 16.402-3) when the award fee or incentive is based solely on

factors other than cost. The contract type remains firm-fixed-price when used with these incentives.

16.202-2 Application.

A firm-fixed-price contract is suitable for acquiring commercial products or commercial services (see
parts 2 and 12) or for acquiring other supplies or services on the basis of reasonably definite

functional or detailed specifications (see part 11) when the contracting officer can establish fair and

reasonable prices at the outset, such as when-

(a) There is adequate price competition;

(b) There are reasonable price comparisons with prior purchases of the same or similar supplies or

services made on a competitive basis or supported by valid certified cost or pricing data;

(c) Available cost or pricing information permits realistic estimates of the probable costs of

performance; or

(d) Performance uncertainties can be identified and reasonable estimates of their cost impact can be

made, and the contractor is willing to accept a firm fixed price representing assumption of the risks

involved.

16.203 Fixed-price contracts with economic price adjustment.

16.203-1 Description.

(a) A fixed-price contract with economic price adjustment provides for upward and downward

revision of the stated contract price upon the occurrence of specified contingencies. Economic price

adjustments are of three general types:

(1) Adjustments based on established prices. These price adjustments are based on increases or

decreases from an agreed-upon level in published or otherwise established prices of specific items or

the contract end items.

(2) Adjustments based on actual costs of labor or material. These price adjustments are based on

increases or decreases in specified costs of labor or material that the contractor actually experiences

during contract performance.

(3) Adjustments based on cost indexes of labor or material. These price adjustments are based on

increases or decreases in labor or material cost standards or indexes that are specifically identified

in the contract.

(b) The contracting officer may use a fixed-price contract with economic price adjustment in

conjunction with an award-fee incentive (see 16.404) and performance or delivery incentives (see

16.402-2 and 16.402-3) when the award fee or incentive is based solely on factors other than cost.

The contract type remains fixed-price with economic price adjustment when used with these

incentives.

16.203-2 Application.

A fixed-price contract with economic price adjustment may be used when (i) there is serious doubt

concerning the stability of market or labor conditions that will exist during an extended period of

contract performance, and (ii) contingencies that would otherwise be included in the contract price

can be identified and covered separately in the contract. Price adjustments based on established

prices should normally be restricted to industry-wide contingencies. Price adjustments based on
labor and material costs should be limited to contingencies beyond the contractor’s control. For use

of economic price adjustment in sealed bid contracts, see 14.408-4.

(a) In establishing the base level from which adjustment will be made, the contracting officer shall

ensure that contingency allowances are not duplicated by inclusion in both the base price and the

adjustment requested by the contractor under economic price adjustment clause.

(b) In contracts that do not require submission of certified cost or pricing data, the contracting

officer shall obtain adequate data to establish the base level from which adjustment will be made

and may require verification of data submitted.

16.203-3 Limitations.

A fixed-price contract with economic price adjustment shall not be used unless the contracting

officer determines that it is necessary either to protect the contractor and the Government against

significant fluctuations in labor or material costs or to provide for contract price adjustment in the

event of changes in the contractor’s established prices.

16.203-4 Contract clauses.

(a) Adjustment based on established prices-standard supplies.

(1) The contracting officer shall, when contracting by negotiation, insert the clause at 52.216-2,

Economic Price Adjustment-Standard Supplies, or an agency-prescribed clause as authorized in

paragraph (a)(2) of this subsection, in solicitations and contracts when all of the following conditions

apply:

(i) A fixed-price contract is contemplated.

(ii) The requirement is for standard supplies that have an established catalog or market price.

(iii) The contracting officer has made the determination specified in 16.203-3.

(2) If all the conditions in paragraph (a)(1) of this subsection apply and the contracting officer

determines that the use of the clause at 52.216-2 is inappropriate, the contracting officer may use an

agency-prescribed clause instead of the clause at 52.216-2.

(3) If the negotiated unit price reflects a net price after applying a trade discount from a catalog or

list price, the contracting officer shall document in the contract file both the catalog or list price and

the discount. (This does not apply to prompt payment or cash discounts.)

(4) The contracting officer may modify the clause by increasing the 10 percent limit on aggregate

increases specified in 52.216-2(c)(1), upon approval by the chief of the contracting office.

(b) Adjustment based on established prices-semistandard supplies.

(1) The contracting officer shall, when contracting by negotiation, insert the clause at 52.216-3,

Economic Price Adjustment-Semistandard Supplies, or an agency-prescribed clause as authorized in
paragraph (b)(2) of this section, in solicitations and contracts when all of the following conditions

apply:

(i) A fixed-price contract is contemplated.

(ii) The requirement is for semistandard supplies for which the prices can be reasonably related to

the prices of nearly equivalent standard supplies that have an established catalog or market price.

(iii) The contracting officer has made the determination specified in 16.203-3.

(2) If all conditions in paragraph (b)(1) of this subsection apply and the contracting officer

determines that the use of the clause at 52.216-3 is inappropriate, the contracting officer may use an

agency-prescribed clause instead of the clause at 52.216-3.

(3) If the negotiated unit price reflects a net price after applying a trade discount from a catalog or

list price, the contracting officer shall document in the contract file both the catalog or list price and

the discount. (This does not apply to prompt payment or cash discounts.)

(4) Before entering into the contract, the contracting officer and contractor must agree in writing on

the identity of the standard supplies and the corresponding line items to which the clause applies.

(5) If the supplies are standard, except for preservation, packaging, and packing requirements, the

clause prescribed in 16.203-4(a) shall be used rather than this clause.

(6) The contracting officer may modify the clause by increasing the 10 percent limit on aggregate

increases specified in 52.216-3(c)(1), upon approval by the chief of the contracting office.

(c) Adjustments based on actual cost of labor or material.

(1) The contracting officer shall, when contracting by negotiation, insert a clause that is

substantially the same as the clause at 52.216-4, Economic Price Adjustment -Labor and Material, or

an agency-prescribed clause as authorized in subparagraph (c)(2) of this section, in solicitations and

contracts when all of the following conditions apply:

(i) A fixed-price contract is contemplated.

(ii) There is no major element of design engineering or development work involved.

(iii) One or more identifiable labor or material cost factors are subject to change.

(iv) The contracting officer has made the determination specified in 16.203-3.

(2) If all conditions in paragraph (c)(1) of this section apply and the contracting officer determines

that the use of the clause at 52.216-4 is inappropriate, the contracting officer may use an agencyprescribed clause instead of the clause at 52.216-4.

(3) The contracting officer shall describe in detail in the contract Schedule-

(i) The types of labor and materials subject to adjustment under the clause;

(ii) The labor rates, including fringe benefits (if any) and unit prices of materials that may be

increased or decreased; and
(iii) The quantities of the specified labor and materials allocable to each unit to be delivered under

the contract.

(4) In negotiating adjustments under the clause, the contracting officer shall-

(i) Consider work in process and materials on hand at the time of changes in labor rates, including

fringe benefits (if any) or material prices;

(ii) Not include in adjustments any indirect cost (except fringe benefits as defined in 31.205-6(m)) or

profit; and

(iii) Consider only those fringe benefits specified in the contract Schedule.

(5) The contracting officer may modify the clause by increasing the 10 percent limit on aggregate

increases specified in 52.216-4(c)(4), upon approval by the chief of the contracting office.

(d) Adjustments based on cost indexes of labor or material. The contracting officer should consider

using an economic price adjustment clause based on cost indexes of labor or material under the

circumstances and subject to approval as described in paragraphs (d)(1) and (d)(2) of this section.

(1) A clause providing adjustment based on cost indexes of labor or materials may be appropriate

when-

(i) The contract involves an extended period of performance with significant costs to be incurred

beyond 1 year after performance begins;

(ii) The contract amount subject to adjustment is substantial; and

(iii) The economic variables for labor and materials are too unstable to permit a reasonable division

of risk between the Government and the contractor, without this type of clause.

(2) Any clause using this method shall be prepared and approved under agency procedures. Because

of the variations in circumstances and clause wording that may arise, no standard clause is

prescribed.

16.204 Fixed-price incentive contracts.

A fixed-price incentive contract is a fixed-price contract that provides for adjusting profit and

establishing the final contract price by a formula based on the relationship of final negotiated total

cost to total target cost. Fixed-price incentive contracts are covered in subpart 16.4, Incentive

Contracts. See 16.403 for more complete descriptions, application, and limitations for these

contracts. Prescribed clauses are found at 16.406.

16.205 Fixed-price contracts with prospective price redetermination.

16.205-1 Description.

A fixed-price contract with prospective price redetermination provides for-
(a) A firm fixed price for an initial period of contract deliveries or performance; and

(b) Prospective redetermination, at a stated time or times during performance, of the price for

subsequent periods of performance.

16.205-2 Application.

A fixed-price contract with prospective price redetermination may be used in acquisitions of quantity

production or services for which it is possible to negotiate a fair and reasonable firm fixed price for

an initial period, but not for subsequent periods of contract performance.

(a) The initial period should be the longest period for which it is possible to negotiate a fair and

reasonable firm fixed price. Each subsequent pricing period should be at least 12 months.

(b) The contract may provide for a ceiling price based on evaluation of the uncertainties involved in

performance and their possible cost impact. This ceiling price should provide for assumption of a

reasonable proportion of the risk by the contractor and, once established, may be adjusted only by

operation of contract clauses providing for equitable adjustment or other revision of the contract

price under stated circumstances.

16.205-3 Limitations.

This contract type shall not be used unless-

(a) Negotiations have established that-

(1) The conditions for use of a firm-fixed-price contract are not present (see 16.202-2); and

(2) A fixed-price incentive contract would not be more appropriate;

(b) The contractor’s accounting system is adequate for price redetermination;

(c) The prospective pricing periods can be made to conform with operation of the contractor’s

accounting system; and

(d) There is reasonable assurance that price redetermination actions will take place promptly at the

specified times.

16.205-4 Contract clause.

The contracting officer shall, when contracting by negotiation, insert the clause at 52.216-5, Price

Redetermination-Prospective, in solicitations and contracts when a fixed-price contract is

contemplated and the conditions specified in 16.205-2 and 16.205-3(a) through (d) apply.

16.206 Fixed-ceiling-price contracts with retroactive price redetermination.
16.206-1 Description.

A fixed-ceiling-price contract with retroactive price redetermination provides for-

(a) A fixed ceiling price; and

(b) Retroactive price redetermination within the ceiling after completion of the contract.

16.206-2 Application.

A fixed-ceiling-price contract with retroactive price redetermination is appropriate for research and

development contracts estimated at the simplified acquisition threshold or less when it is established

at the outset that a fair and reasonable firm fixed price cannot be negotiated and that the amount

involved and short performance period make the use of any other fixed-price contract type

impracticable.

(a) A ceiling price shall be negotiated for the contract at a level that reflects a reasonable sharing of

risk by the contractor. The established ceiling price may be adjusted only if required by the

operation of contract clauses providing for equitable adjustment or other revision of the contract

price under stated circumstances.

(b) The contract should be awarded only after negotiation of a billing price that is as fair and

reasonable as the circumstances permit.

(c) Since this contract type provides the contractor no cost control incentive except the ceiling price,

the contracting officer should make clear to the contractor during discussion before award that the

contractor’s management effectiveness and ingenuity will be considered in retroactively

redetermining the price.

16.206-3 Limitations.

This contract type shall not be used unless-

(a) The contract is for research and development and the estimated cost is the simplified acquisition

threshold or less;

(b) The contractor’s accounting system is adequate for price redetermination;

(c) There is reasonable assurance that the price redetermination will take place promptly at the

specified time; and

(d) The head of the contracting activity (or a higher-level official, if required by agency procedures)

approves its use in writing.

16.206-4 Contract clause.

The contracting officer shall, when contracting by negotiation, insert the clause at 52.216-6, Price

Redetermination-Retroactive, in solicitations and contracts when a fixed-price contract is
contemplated and the conditions in 16.206-2 and 16.206-3(a) through (d) apply.

16.207 Firm-fixed-price, level-of-effort term contracts.

16.207-1 Description.

A firm-fixed-price, level-of-effort term contract requires-

(a) The contractor to provide a specified level of effort, over a stated period of time, on work that can

be stated only in general terms; and

(b) The Government to pay the contractor a fixed dollar amount.

16.207-2 Application.

A firm-fixed-price, level-of-effort term contract is suitable for investigation or study in a specific

research and development area. The product of the contract is usually a report showing the results

achieved through application of the required level of effort. However, payment is based on the effort

expended rather than on the results achieved.

16.207-3 Limitations.

This contract type may be used only when-

(a) The work required cannot otherwise be clearly defined;

(b) The required level of effort is identified and agreed upon in advance;

(c) There is reasonable assurance that the intended result cannot be achieved by expending less

than the stipulated effort; and

(d) The contract price is the simplified acquisition threshold or less, unless approved by the chief of

the contracting office.

Subpart 16.3 - Cost-Reimbursement Contracts

16.301 General.

16.301-1 Description.

Cost-reimbursement types of contracts provide for payment of allowable incurred costs, to the

extent prescribed in the contract. These contracts establish an estimate of total cost for the purpose

of obligating funds and establishing a ceiling that the contractor may not exceed (except at its own

risk) without the approval of the contracting officer.
16.301-2 Application.

(a) The contracting officer shall use cost-reimbursement contracts only when-

(1) Circumstances do not allow the agency to define its requirements sufficiently to allow for a fixedprice type contract (see 7.105); or

(2) Uncertainties involved in contract performance do not permit costs to be estimated with

sufficient accuracy to use any type of fixed-price contract.

(b) The contracting officer shall document the rationale for selecting the contract type in the written

acquisition plan and ensure that the plan is approved and signed at least one level above the

contracting officer (see 7.103(j) and 7.105).

16.301-3 Limitations.

(a) A cost-reimbursement contract may be used only when 

(1) The factors in 16.104 have been considered;

(2) A written acquisition plan has been approved and signed at least one level above the contracting

officer;

(3) The contractor’s accounting system is adequate for determining costs applicable to the contract

or order; and

(4) Prior to award of the contract or order, adequate Government resources are available to award

and manage a contract other than firm-fixed-priced (see 7.104(e)). This includes appropriate

Government surveillance during performance in accordance with 1.602-2, to provide reasonable

assurance that efficient methods and effective cost controls are used.

(b) The use of cost-reimbursement contracts is prohibited for the acquisition of commercial products

and commercial services (see parts 2 and 12).

16.302 Cost contracts.

(a) Description. A cost contract is a cost-reimbursement contract in which the contractor receives no

fee.

(b) Application. A cost contract may be appropriate for research and development work, particularly

with nonprofit educational institutions or other nonprofit organizations.

(c) Limitations. See 16.301-3.

16.303 Cost-sharing contracts.

(a) Description. A cost-sharing contract is a cost-reimbursement contract in which the contractor

receives no fee and is reimbursed only for an agreed-upon portion of its allowable costs.
(b) Application. A cost-sharing contract may be used when the contractor agrees to absorb a portion

of the costs, in the expectation of substantial compensating benefits.

(c) Limitations. See 16.301-3.

16.304 Cost-plus-incentive-fee contracts.

A cost-plus-incentive-fee contract is a cost-reimbursement contract that provides for an initially

negotiated fee to be adjusted later by a formula based on the relationship of total allowable costs to

total target costs. Cost-plus-incentive-fee contracts are covered in subpart 16.4, Incentive

Contracts. See 16.405-1 for a more complete description and discussion of application of these

contracts. See 16.301-3 for limitations.

16.305 Cost-plus-award-fee contracts.

A cost-plus-award-fee contract is a cost-reimbursement contract that provides for a fee consisting of

(a)a base amount (which may be zero) fixed at inception of the contract and (b)an award amount,

based upon a judgmental evaluation by the Government, sufficient to provide motivation for

excellence in contract performance. cost-plus-award-fee contracts are covered in subpart 16.4,

Incentive Contracts. See 16.401(e) for a more complete description and discussion of the application

of these contracts. See 16.301-3 and 16.401(e)(5) for limitations.

16.306 Cost-plus-fixed-fee contracts.

(a) Description. A cost-plus-fixed-fee contract is a cost-reimbursement contract that provides for

payment to the contractor of a negotiated fee that is fixed at the inception of the contract. The fixed

fee does not vary with actual cost, but may be adjusted as a result of changes in the work to be

performed under the contract. This contract type permits contracting for efforts that might

otherwise present too great a risk to contractors, but it provides the contractor only a minimum

incentive to control costs.

(b) Application.

(1) A cost-plus-fixed-fee contract is suitable for use when the conditions of 16.301-2 are present and,

for example-

(i) The contract is for the performance of research or preliminary exploration or study, and the level

of effort required is unknown; or

(ii) The contract is for development and test, and using a cost-plus-incentive-fee contract is not

practical.

(2) A cost-plus-fixed-fee contract normally should not be used in development of major systems (see

part 34) once preliminary exploration, studies, and risk reduction have indicated a high degree of

probability that the development is achievable and the Government has established reasonably firm

performance objectives and schedules.
(c) Limitations. No cost-plus-fixed-fee contract shall be awarded unless the contracting officer

complies with all limitations in 15.404-4(c)(4)(i) and 16.301-3.

(d) Completion and term forms. A cost-plus-fixed-fee contract may take one of two basic formscompletion or term.

(1) The completion form describes the scope of work by stating a definite goal or target and

specifying an end product. This form of contract normally requires the contractor to complete and

deliver the specified end product (e.g.,a final report of research accomplishing the goal or target)

within the estimated cost, if possible, as a condition for payment of the entire fixed fee. However, in

the event the work cannot be completed within the estimated cost, the Government may require

more effort without increase in fee, provided the Government increases the estimated cost.

(2) The term form describes the scope of work in general terms and obligates the contractor to

devote a specified level of effort for a stated time period. Under this form, if the performance is

considered satisfactory by the Government, the fixed fee is payable at the expiration of the agreedupon period, upon contractor statement that the level of effort specified in the contract has been

expended in performing the contract work. Renewal for further periods of performance is a new

acquisition that involves new cost and fee arrangements.

(3) Because of the differences in obligation assumed by the contractor, the completion form is

preferred over the term form whenever the work, or specific milestones for the work, can be defined

well enough to permit development of estimates within which the contractor can be expected to

complete the work.

(4) The term form shall not be used unless the contractor is obligated by the contract to provide a

specific level of effort within a definite time period.

16.307 Contract clauses.

(a)

(1) The contracting officer shall insert the clause at 52.216-7, Allowable Cost and Payment, in

solicitations and contracts when a cost-reimbursement contract or a time-and-materials contract

(other than a contract for a commercial product or commercial service) is contemplated. If the

contract is a time-and-materials contract, the clause at 52.216-7 applies in conjunction with the

clause at 52.232-7), but only to the portion of the contract that provides for reimbursement of

materials (as defined in the clause at 52.232-7) at actual cost. Further, the clause at 52.216-7 does

not apply to labor-hour contracts.

(2) If the contract is a construction contract and contains the clause at 52.232-27, Prompt Payment

for Construction Contracts, the contracting officer shall use the clause at 52.216-7 with its Alternate

I.

(3) If the contract is with an educational institution, the contracting officer shall use the clause at

52.216-7 with its Alternate II.

(4) If the contract is with a State or local government, the contracting officer shall use the clause at

52.216-7 with its Alternate III.
(5) If the contract is with a nonprofit organization other than an educational institution, a State or

local government, or a nonprofit organization exempted under the OMB Uniform Guidance at 2 CFR

part 200, appendix VIII, the contracting officer shall use the clause at 52.216-7 with its Alternate IV.

(b) The contracting officer shall insert the clause at 52.216-8, Fixed Fee, in solicitations and

contracts when a cost-plus-fixed-fee contract (other than a construction contract) is contemplated.

(c) The contracting officer shall insert the clause at 52.216-9, Fixed-Fee-Construction, in solicitations

and contracts when a cost-plus-fixed-fee construction contract is contemplated.

(d) The contracting officer shall insert the clause at 52.216-10, Incentive Fee, in solicitations and

contracts when a cost-plus-incentive-fee contract is contemplated.

(e)

(1) The contracting officer shall insert the clause at 52.216-11, Cost Contract-No Fee, in solicitations

and contracts when a cost-reimbursement contract is contemplated that provides no fee and is not a

cost-sharing contract.

(2) If a cost-reimbursement research and development contract with an educational institution or a

nonprofit organization that provides no fee or other payment above cost and is not a cost-sharing

contract is contemplated, and if the contracting officer determines that withholding of a portion of

allowable costs is not required, the contracting officer shall use the clause with its Alternate I.

(f)

(1) The contracting officer shall insert the clause at 52.216-12, Cost-Sharing Contract-No Fee, in

solicitations and contracts when a cost-sharing contract is contemplated.

(2) If a cost-sharing research and development contract with an educational institution or a

nonprofit organization is contemplated, and if the contracting officer determines that withholding of

a portion of allowable costs is not required, the contracting officer shall use the clause with its

Alternate I.

(g) The contracting officer shall insert the clause at 52.216-15, Predetermined Indirect Cost Rates,

in solicitations and contracts when a cost-reimbursement research and development contract with

an educational institution (see 42.705-3(b)) is contemplated and predetermined indirect cost rates

are to be used.

Subpart 16.4 - Incentive Contracts

16.401 General.

(a) Incentive contracts as described in this subpart are appropriate when a firm-fixed-price contract

is not appropriate and the required supplies or services can be acquired at lower costs and, in

certain instances, with improved delivery or technical performance, by relating the amount of profit

or fee payable under the contract to the contractor’s performance. Incentive contracts are designed

to obtain specific acquisition objectives by-
(1) Establishing reasonable and attainable targets that are clearly communicated to the contractor;

and

(2) Including appropriate incentive arrangements designed to-

(i) motivate contractor efforts that might not otherwise be emphasized; and

(ii) discourage contractor inefficiency and waste.

(b) When predetermined, formula-type incentives on technical performance or delivery are included,

increases in profit or fee are provided only for achievement that surpasses the targets, and

decreases are provided for to the extent that such targets are not met. The incentive increases or

decreases are applied to performance targets rather than minimum performance requirements.

(c) The two basic categories of incentive contracts are fixed-price incentive contracts (see 16.403

and 16.404) and cost-reimbursement incentive contracts (see 16.405). Since it is usually to the

Government’s advantage for the contractor to assume substantial cost responsibility and an

appropriate share of the cost risk, fixed-price incentive contracts are preferred when contract costs

and performance requirements are reasonably certain. Cost-reimbursement incentive contracts are

subject to the overall limitations in 16.301 that apply to all cost-reimbursement contracts.

(d) A determination and finding, signed by the head of the contracting activity, shall be completed

for all incentive- and award-fee contracts justifying that the use of this type of contract is in the best

interest of the Government. This determination shall be documented in the contract file and, for

award-fee contracts, shall address all of the suitability items in 16.401(e)(1).

(e) Award-fee contracts are a type of incentive contract.

(1) Application. An award-fee contract is suitable for use when-

(i) The work to be performed is such that it is neither feasible nor effective to devise predetermined

objective incentive targets applicable to cost, schedule, and technical performance;

(ii) The likelihood of meeting acquisition objectives will be enhanced by using a contract that

effectively motivates the contractor toward exceptional performance and provides the Government

with the flexibility to evaluate both actual performance and the conditions under which it was

achieved; and

(iii) Any additional administrative effort and cost required to monitor and evaluate performance are

justified by the expected benefits as documented by a risk and cost benefit analysis to be included in

the Determination and Findings referenced in 16.401(e)(5)(iii).

(2) Award-fee amount. The amount of award fee earned shall be commensurate with the contractor’s

overall cost, schedule, and technical performance as measured against contract requirements in

accordance with the criteria stated in the award-fee plan. Award fee shall not be earned if the

contractor’s overall cost, schedule, and technical performance in the aggregate is below satisfactory.

The basis for all award-fee determinations shall be documented in the contract file to include, at a

minimum, a determination that overall cost, schedule and technical performance in the aggregate is

or is not at a satisfactory level. This determination and the methodology for determining the award

fee are unilateral decisions made solely at the discretion of the Government.

(3) Award-fee plan. All contracts providing for award fees shall be supported by an award-fee plan

that establishes the procedures for evaluating award fee and an Award-Fee Board for conducting the
award-fee evaluation. Award-fee plans shall-

(i) Be approved by the FDO unless otherwise authorized by agency procedures;

(ii) Identify the award-fee evaluation criteria and how they are linked to acquisition objectives which

shall be defined in terms of contract cost, schedule, and technical performance. Criteria should

motivate the contractor to enhance performance in the areas rated, but not at the expense of at least

minimum acceptable performance in all other areas;

(iii) Describe how the contractor’s performance will be measured against the award-fee evaluation

criteria;

(iv) Utilize the adjectival rating and associated description as well as the award-fee pool earned

percentages shown below in Table 16-1. Contracting officers may supplement the adjectival rating

description. The method used to determine the adjectival rating must be documented in the awardfee plan;

Table 16-1

Award-Fee

Adjectival

Rating

Award-Fee

Pool

Available To

Be Earned

Description

Excellent 91%-100%

Contractor has exceeded almost all of the significant

award-fee criteria and has met overall cost, schedule,

and technical performance requirements of the

contract in the aggregate as defined and measured

against the criteria in the award-fee plan for the

award-fee evaluation period.

Very Good 76%-90%

Contractor has exceeded many of the significant

award-fee criteria and has met overall cost, schedule,

and technical performance requirements of the

contract in the aggregate as defined and measured

against the criteria in the award-fee plan for the

award-fee evaluation period.

Good 51%-75%

Contractor has exceeded some of the significant

award-fee criteria and has met overall cost, schedule,

and technical performance requirements of the

contract in the aggregate as defined and measured

against the criteria in the award-fee plan for the

award-fee evaluation period.

Satisfactory No Greater

Than 50%

Contractor has met overall cost, schedule, and

technical performance requirements of the contract

in the aggregate as defined and measured against

the criteria in the award-fee plan for the award-fee

evaluation period.
Award-Fee

Adjectival

Rating

Award-Fee

Pool

Available To

Be Earned

Description

Unsatisfactory 0%

Contractor has failed to meet overall cost, schedule,

and technical performance requirements of the

contract in the aggregate as defined and measured

against the criteria in the award-fee plan for the

award-fee evaluation period.

(v) Prohibit earning any award fee when a contractor’s overall cost, schedule, and technical

performance in the aggregate is below satisfactory;

(vi) Provide for evaluation period(s) to be conducted at stated intervals during the contract period of

performance so that the contractor will periodically be informed of the quality of its performance

and the areas in which improvement is expected (e.g. six months, nine months, twelve months, or at

specific milestones); and

(vii) Define the total award-fee pool amount and how this amount is allocated across each evaluation

period.

(4) Rollover of unearned award fee. The use of rollover of unearned award fee is prohibited.

(5) Limitations. No award-fee contract shall be awarded unless-

(i) All of the limitations in 16.301-3, that are applicable to cost-reimbursement contracts only, are

complied with;

(ii) An award-fee plan is completed in accordance with the requirements in 16.401(e)(3); and

(iii) A determination and finding is completed in accordance with 16.401(d) addressing all of the

suitability items in 16.401(e)(1).

(f) Incentive- and Award-Fee Data Collection and Analysis. Each agency shall collect relevant data on

award fee and incentive fees paid to contractors and include performance measures to evaluate such

data on a regular basis to determine effectiveness of award and incentive fees as a tool for

improving contractor performance and achieving desired program outcomes. This information

should be considered as part of the acquisition planning process (see 7.105) in determining the

appropriate type of contract to be utilized for future acquisitions.

(g) Incentive- and Award-Fee Best Practices. Each agency head shall provide mechanisms for

sharing proven incentive strategies for the acquisition of different types of products and services

among contracting and program management officials.

16.402 Application of predetermined, formula-type incentives.

16.402-1 Cost incentives.
(a) Most incentive contracts include only cost incentives, which take the form of a profit or fee

adjustment formula and are intended to motivate the contractor to effectively manage costs. No

incentive contract may provide for other incentives without also providing a cost incentive (or

constraint).

(b) Except for award-fee contracts (see 16.404 and 16.401(e)), incentive contracts include a target

cost, a target profit or fee, and a profit or fee adjustment formula that (within the constraints of a

price ceiling or minimum and maximum fee) provides that-

(1) Actual cost that meets the target will result in the target profit or fee;

(2) Actual cost that exceeds the target will result in downward adjustment of target profit or fee; and

(3) Actual cost that is below the target will result in upward adjustment of target profit or fee.

16.402-2 Performance incentives.

(a) Performance incentives may be considered in connection with specific product characteristics

(e.g.,a missile range, an aircraft speed, an engine thrust, or a vehicle maneuverability) or other

specific elements of the contractor’s performance. These incentives should be designed to relate

profit or fee to results achieved by the contractor, compared with specified targets.

(b) To the maximum extent practicable, positive and negative performance incentives shall be

considered in connection with service contracts for performance of objectively measurable tasks

when quality of performance is critical and incentives are likely to motivate the contractor.

(c) Technical performance incentives may be particularly appropriate in major systems contracts,

both in development (when performance objectives are known and the fabrication of prototypes for

test and evaluation is required) and in production (if improved performance is attainable and highly

desirable to the Government).

(d) Technical performance incentives may involve a variety of specific characteristics that contribute

to the overall performance of the end item. Accordingly, the incentives on individual technical

characteristics must be balanced so that no one of them is exaggerated to the detriment of the

overall performance of the end item.

(e) Performance tests and/or assessments of work performance are generally essential in order to

determine the degree of attainment of performance targets. Therefore, the contract must be as

specific as possible in establishing test criteria (such as testing conditions, instrumentation

precision, and data interpretation) and performance standards (such as the quality levels of services

to be provided).

(f) Because performance incentives present complex problems in contract administration, the

contracting officer should negotiate them in full coordination with Government engineering and

pricing specialists.

(g) It is essential that the Government and contractor agree explicitly on the effect that contract

changes (e.g., pursuant to the Changes clause) will have on performance incentives.

(h) The contracting officer must exercise care, in establishing performance criteria, to recognize that

the contractor should not be rewarded or penalized for attainments of Government-furnished
components.

16.402-3 Delivery incentives.

(a) Delivery incentives should be considered when improvement from a required delivery schedule is

a significant Government objective. It is important to determine the Government’s primary

objectives in a given contract (e.g., earliest possible delivery or earliest quantity production).

(b) Incentive arrangements on delivery should specify the application of the reward-penalty

structure in the event of Government-caused delays or other delays beyond the control, and without

the fault or negligence, of the contractor or subcontractor.

16.402-4 Structuring multiple-incentive contracts.

A properly structured multiple-incentive arrangement should-

(a) Motivate the contractor to strive for outstanding results in all incentive areas; and

(b) Compel trade-off decisions among the incentive areas, consistent with the Government’s overall

objectives for the acquisition. Because of the interdependency of the Government’s cost, the

technical performance, and the delivery goals, a contract that emphasizes only one of the goals may

jeopardize control over the others. Because outstanding results may not be attainable for each of the

incentive areas, all multiple-incentive contracts must include a cost incentive (or constraint) that

operates to preclude rewarding a contractor for superior technical performance or delivery results

when the cost of those results outweighs their value to the Government.

16.403 Fixed-price incentive contracts.

(a) Description. A fixed-price incentive contract is a fixed-price contract that provides for adjusting

profit and establishing the final contract price by application of a formula based on the relationship

of total final negotiated cost to total target cost. The final price is subject to a price ceiling,

negotiated at the outset. The two forms of fixed-price incentive contracts, firm target and successive

targets, are further described in 16.403-1 and 16.403-2 below.

(b) Application. A fixed-price incentive contract is appropriate when-

(1) A firm-fixed-price contract is not suitable;

(2) The nature of the supplies or services being acquired and other circumstances of the acquisition

are such that the contractor’s assumption of a degree of cost responsibility will provide a positive

profit incentive for effective cost control and performance; and

(3) If the contract also includes incentives on technical performance and/or delivery, the

performance requirements provide a reasonable opportunity for the incentives to have a meaningful

impact on the contractor’s management of the work.

(c) Billing prices. In fixed-price incentive contracts, billing prices are established as an interim basis

for payment. These billing prices may be adjusted, within the ceiling limits, upon request of either
party to the contract, when it becomes apparent that final negotiated cost will be substantially

different from the target cost.

16.403-1 Fixed-price incentive (firm target) contracts.

(a) Description. A fixed-price incentive (firm target) contract specifies a target cost, a target profit, a

price ceiling (but not a profit ceiling or floor), and a profit adjustment formula. These elements are

all negotiated at the outset. The price ceiling is the maximum that may be paid to the contractor,

except for any adjustment under other contract clauses. When the contractor completes

performance, the parties negotiate the final cost, and the final price is established by applying the

formula. When the final cost is less than the target cost, application of the formula results in a final

profit greater than the target profit; conversely, when final cost is more than target cost, application

of the formula results in a final profit less than the target profit, or even a net loss. If the final

negotiated cost exceeds the price ceiling, the contractor absorbs the difference as a loss. Because

the profit varies inversely with the cost, this contract type provides a positive, calculable profit

incentive for the contractor to control costs.

(b) Application. A fixed-price incentive (firm target) contract is appropriate when the parties can

negotiate at the outset a firm target cost, target profit, and profit adjustment formula that will

provide a fair and reasonable incentive and a ceiling that provides for the contractor to assume an

appropriate share of the risk. When the contractor assumes a considerable or major share of the cost

responsibility under the adjustment formula, the target profit should reflect this responsibility.

(c) Limitations. This contract type may be used only when-

(1) The contractor’s accounting system is adequate for providing data to support negotiation of final

cost and incentive price revision; and

(2) Adequate cost or pricing information for establishing reasonable firm targets is available at the

time of initial contract negotiation.

(d) Contract schedule. The contracting officer shall specify in the contract schedule the target cost,

target profit, and target price for each item subject to incentive price revision.

16.403-2 Fixed-price incentive (successive targets) contracts.

(a) Description.

(1) A fixed-price incentive (successive targets) contract specifies the following elements, all of which

are negotiated at the outset:

(i) An initial target cost.

(ii) An initial target profit.

(iii) An initial profit adjustment formula to be used for establishing the firm target profit, including a

ceiling and floor for the firm target profit. (This formula normally provides for a lesser degree of

contractor cost responsibility than would a formula for establishing final profit and price.)
(iv) The production point at which the firm target cost and firm target profit will be negotiated

(usually before delivery or shop completion of the first item).

(v) A ceiling price that is the maximum that may be paid to the contractor, except for any adjustment

under other contract clauses providing for equitable adjustment or other revision of the contract

price under stated circumstances.

(2) When the production point specified in the contract is reached, the parties negotiate the firm

target cost, giving consideration to cost experience under the contract and other pertinent factors.

The firm target profit is established by the formula. At this point, the parties have two alternatives,

as follows:

(i) They may negotiate a firm fixed price, using the firm target cost plus the firm target profit as a

guide.

(ii) If negotiation of a firm fixed price is inappropriate, they may negotiate a formula for establishing

the final price using the firm target cost and firm target profit. The final cost is then negotiated at

completion, and the final profit is established by formula, as under the fixed-price incentive (firm

target) contract (see 16.403-1 above).

(b) Application. A fixed-price incentive (successive targets) contract is appropriate when-

(1) Available cost or pricing information is not sufficient to permit the negotiation of a realistic firm

target cost and profit before award;

(2) Sufficient information is available to permit negotiation of initial targets; and

(3) There is reasonable assurance that additional reliable information will be available at an early

point in the contract performance so as to permit negotiation of either (i)a firm fixed price or (ii) firm

targets and a formula for establishing final profit and price that will provide a fair and reasonable

incentive. This additional information is not limited to experience under the contract, itself, but may

be drawn from other contracts for the same or similar items.

(c) Limitations. This contract type may be used only when-

(1) The contractor’s accounting system is adequate for providing data for negotiating firm targets

and a realistic profit adjustment formula, as well as later negotiation of final costs; and

(2) Cost or pricing information adequate for establishing a reasonable firm target cost is reasonably

expected to be available at an early point in contract performance.

(d) Contract schedule. The contracting officer shall specify in the contract schedule the initial target

cost, initial target profit, and initial target price for each item subject to incentive price revision.

16.404 Fixed-price contracts with award fees.

Award-fee provisions may be used in fixed-price contracts when the Government wishes to motivate

a contractor and other incentives cannot be used because contractor performance cannot be

measured objectively. Such contracts shall establish a fixed price (including normal profit) for the

effort. This price will be paid for satisfactory contract performance. Award fee earned (if any) will be

paid in addition to that fixed price. See 16.401(e) for the requirements relative to utilizing this

contract type.
16.405 Cost-reimbursement incentive contracts.

See 16.301 for requirements applicable to all cost-reimbursement contracts, for use in conjunction

with the following subsections.

16.405-1 Cost-plus-incentive-fee contracts.

(a) Description. The cost-plus-incentive-fee contract is a cost-reimbursement contract that provides

for the initially negotiated fee to be adjusted later by a formula based on the relationship of total

allowable costs to total target costs. This contract type specifies a target cost, a target fee, minimum

and maximum fees, and a fee adjustment formula. After contract performance, the fee payable to the

contractor is determined in accordance with the formula. The formula provides, within limits, for

increases in fee above target fee when total allowable costs are less than target costs, and decreases

in fee below target fee when total allowable costs exceed target costs. This increase or decrease is

intended to provide an incentive for the contractor to manage the contract effectively. When total

allowable cost is greater than or less than the range of costs within which the fee-adjustment

formula operates, the contractor is paid total allowable costs, plus the minimum or maximum fee.

(b) Application.

(1) A cost-plus-incentive-fee contract is appropriate for services or development and test programs

when-

(i) A cost-reimbursement contract is necessary (see 16.301-2); and

(ii) A target cost and a fee adjustment formula can be negotiated that are likely to motivate the

contractor to manage effectively.

(2) The contract may include technical performance incentives when it is highly probable that the

required development of a major system is feasible and the Government has established its

performance objectives, at least in general terms. This approach also may apply to other

acquisitions, if the use of both cost and technical performance incentives is desirable and

administratively practical.

(3) The fee adjustment formula should provide an incentive that will be effective over the full range

of reasonably foreseeable variations from target cost. If a high maximum fee is negotiated, the

contract shall also provide for a low minimum fee that may be a zero fee or, in rare cases, a negative

fee.

(c) Limitations. No cost-plus-incentive-fee contract shall be awarded unless all limitations in

16.301-3 are complied with.

16.405-2 Cost-plus-award-fee contracts.

A cost-plus-award-fee contract is a cost-reimbursement contract that provides for a fee consisting of

(1) a base amount fixed at inception of the contract, if applicable and at the discretion of the

contracting officer, and (2) an award amount that the contractor may earn in whole or in part during

performance and that is sufficient to provide motivation for excellence in the areas of cost, schedule,
and technical performance. See 16.401(e) for the requirements relative to utilizing this contract

type.

16.406 Contract clauses.

(a) Insert the clause at 52.216-16, Incentive Price Revision-Firm Target, in solicitations and

contracts when a fixed-price incentive (firm target) contract is contemplated. If the contract calls for

supplies or services to be ordered under a provisioning document or Government option and the

prices are to be subject to the incentive price revision under the clause, the contracting officer shall

use the clause with its Alternate I.

(b) Insert the clause at 52.216-17, Incentive Price Revision-Successive Targets, in solicitations and

contracts when a fixed-price incentive (successive targets) contract is contemplated. If the contract

calls for supplies or services to be ordered under a provisioning document or Government option and

the prices are to be subject to incentive price revision under the clause, the contracting officer shall

use the clause with its Alternate I.

(c) The clause at 52.216-7, Allowable Cost and Payment, is prescribed in 16.307(a) for insertion in

solicitations and contracts when a cost-plus-incentive-fee contract or a cost-plus-award-fee contract

is contemplated.

(d) The clause at 52.216-10, Incentive Fee, is prescribed in 16.307(d) for insertion in solicitations

and contracts when a cost-plus-incentive-fee contract is contemplated.

(e) Insert an appropriate award-fee clause in solicitations and contracts when an award-fee contract

is contemplated, provided that the clause-

(1) Is prescribed by or approved under agency acquisition regulations;

(2) Is compatible with the clause at 52.216-7, Allowable Cost and Payment; and

(3) Expressly provides that the award amount and the award-fee determination methodology are

unilateral decisions made solely at the discretion of the Government.

Subpart 16.5 - Indefinite-Delivery Contracts

16.500 Scope of subpart.

(a) This subpart prescribes policies and procedures for making awards of indefinite-delivery

contracts and establishes a preference for making multiple awards of indefinite-quantity contracts.

(b) This subpart does not limit the use of other than competitive procedures authorized by part 6.

(c) Nothing in this subpart restricts the authority of the General Services Administration (GSA) to

enter into schedule, multiple award, or task or delivery order contracts under any other provision of

law. Therefore, GSA regulations and the coverage for the Federal Supply Schedule program in

subpart 8.4 and part 38 take precedence over this subpart.

(d) The statutory multiple award preference implemented by this subpart does not apply to architect-
engineer contracts subject to the procedures in subpart 36.6. However, agencies are not precluded

from making multiple awards for architect-engineer services using the procedures in this subpart,

provided the selection of contractors and placement of orders are consistent with subpart 36.6.

(e) See subpart 19.5 for procedures to set aside part or parts of multiple-award contracts for small

businesses; to reserve one or more awards for small business on multiple-award contracts; and to

set aside orders for small businesses under multiple-award contracts.

16.501 [Reserved]

16.501-1 Definitions.

As used in this subpartDelivery-order contract means a contract for supplies that does not procure or specify a firm

quantity of supplies (other than a minimum or maximum quantity) and that provides for the issuance

of orders for the delivery of supplies during the period of the contract.

Task-order contract means a contract for services that does not procure or specify a firm quantity of

services (other than a minimum or maximum quantity) and that provides for the issuance of orders

for the performance of tasks during the period of the contract.

16.501-2 General.

(a) There are three types of indefinite-delivery contracts: definite-quantity contracts, requirements

contracts, and indefinite-quantity contracts. The appropriate type of indefinite-delivery contract may

be used to acquire supplies and/or services when the exact times and/or exact quantities of future

deliveries are not known at the time of contract award. Pursuant to 10 U.S.C. 3401 and 41 U.S.C.

4101, requirements contracts and indefinite-quantity contracts are also known as delivery-order

contracts or task-order contracts.

(b) The various types of indefinite-delivery contracts offer the following advantages:

(1) All three types permit-

(i) Government stocks to be maintained at minimum levels; and

(ii) Direct shipment to users.

(2) Indefinite-quantity contracts and requirements contracts also permit-

(i) Flexibility in both quantities and delivery scheduling; and

(ii) Ordering of supplies or services after requirements materialize.

(3) Indefinite-quantity contracts limit the Government’s obligation to the minimum quantity specified

in the contract.

(4) Requirements contracts may permit faster deliveries when production lead time is involved,
because contractors are usually willing to maintain limited stocks when the Government will obtain

all of its actual purchase requirements from the contractor.

(c) Indefinite-delivery contracts may provide for any appropriate cost or pricing arrangement under

part 16. Cost or pricing arrangements that provide for an estimated quantity of supplies or services

(e.g., estimated number of labor hours) must comply with the appropriate procedures of this

subpart.

16.502 Definite-quantity contracts.

(a) Description. 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.

(b) Application. A definite-quantity contract may be used when it can be determined in advance that-

(1) A definite quantity of supplies or services will be required during the contract period; and

(2) The supplies or services are regularly available or will be available after a short lead time.

16.503 Requirements contracts.

(a) Description. A requirements contract provides for filling all actual purchase requirements of

designated Government activities for supplies or services during a specified contract period (from

one contractor), with deliveries or performance to be scheduled by placing orders with the

contractor.

(1) For the information of offerors and contractors, the contracting officer shall state a realistic

estimated total quantity in the solicitation and resulting contract. This estimate is not a

representation to an offeror or contractor that the estimated quantity will be required or ordered, or

that conditions affecting requirements will be stable or normal. The contracting officer may obtain

the estimate from records of previous requirements and consumption, or by other means, and should

base the estimate on the most current information available.

(2) The contract shall state, if feasible, the maximum limit of the contractor’s obligation to deliver

and the Government’s obligation to order. The contract may also specify maximum or minimum

quantities that the Government may order under each individual order and the maximum that it may

order during a specified period of time.

(b) Application.

(1) A requirements contract may be appropriate for acquiring any supplies or services when the

Government anticipates recurring requirements but cannot predetermine the precise quantities of

supplies or services that designated Government activities will need during a definite period.

(2) No requirements contract in an amount estimated to exceed $100 million (including all options)

may be awarded to a single source unless a determination is executed in accordance with

16.504(c)(1)(ii)(D).
(c) Government property furnished for repair. When a requirements contract is used to acquire work

(e.g., repair, modification, or overhaul) on existing items of Government property, the contracting

officer shall specify in the Schedule that failure of the Government to furnish such items in the

amounts or quantities described in the Schedule as "estimated" or "maximum" will not entitle the

contractor to any equitable adjustment in price under the Government Property clause of the

contract.

(d) Limitations on use of requirements contracts for advisory and assistance services.

(1) Except as provided in paragraph (d)(2) of this section, no solicitation for a requirements contract

for advisory and assistance services in excess of three years and $15 million (including all options)

may be issued unless the contracting officer or other official designated by the head of the agency

determines in writing that the services required are so unique or highly specialized that it is not

practicable to make multiple awards using the procedures in 16.504.

(2) The limitation in paragraph (d)(1) of this section is not applicable to an acquisition of supplies or

services that includes the acquisition of advisory and assistance services, if the contracting officer or

other official designated by the head of the agency determines that the advisory and assistance

services are necessarily incident to, and not a significant component of, the contract.

16.504 Indefinite-quantity contracts.

(a) Description. An indefinite-quantity contract provides for an indefinite quantity, within stated

limits, of supplies or services during a fixed period. The Government places orders for individual

requirements. Quantity limits may be stated as number of units or as dollar values.

(1) The contract must require the Government to order and the contractor to furnish at least a stated

minimum quantity of supplies or services. In addition, if ordered, the contractor must furnish any

additional quantities, not to exceed the stated maximum. The contracting officer should establish a

reasonable maximum quantity based on market research, trends on recent contracts for similar

supplies or services, survey of potential users, or any other rational basis.

(2) To ensure that the contract is binding, the minimum quantity must be more than a nominal

quantity, but it should not exceed the amount that the Government is fairly certain to order.

(3) The contract may also specify maximum or minimum quantities that the Government may order

under each task or delivery order and the maximum that it may order during a specific period of

time.

(4) A solicitation and contract for an indefinite quantity must-

(i) Specify the period of the contract, including the number of options and the period for which the

Government may extend the contract under each option;

(ii) Specify the total minimum and maximum quantity of supplies or services the Government will

acquire under the contract;

(iii) Include a statement of work, specifications, or other description, that reasonably describes the

general scope, nature, complexity, and purpose of the supplies or services the Government will

acquire under the contract in a manner that will enable a prospective offeror to decide whether to
submit an offer;

(iv) State the procedures that the Government will use in issuing orders, including the ordering

media, and, if multiple awards may be made, state the procedures and selection criteria that the

Government will use to provide awardees a fair opportunity to be considered for each order (see

16.505(b)(1));

(v) Include a description of the activities authorized to issue orders; and

(vi) Include authorization for placing oral orders, if appropriate, provided that the Government has

established procedures for obligating funds and that oral orders are confirmed in writing.

(b) Application. Contracting officers may use an indefinite-quantity contract when the Government

cannot predetermine, above a specified minimum, the precise quantities of supplies or services that

the Government will require during the contract period, and it is inadvisable for the Government to

commit itself for more than a minimum quantity. The contracting officer should use an indefinitequantity contract only when a recurring need is anticipated.

(c) Multiple award preference-

(1) Planning the acquisition.

(i) Except for indefinite-quantity contracts for advisory and assistance services as provided in

paragraph (c)(2) of this section, the contracting officer must, to the maximum extent practicable,

give preference to making multiple awards of indefinite-quantity contracts under a single solicitation

for the same or similar supplies or services to two or more sources.

(ii)

(A) The contracting officer must determine whether multiple awards are appropriate as part of

acquisition planning. The contracting officer must avoid situations in which awardees specialize

exclusively in one or a few areas within the statement of work, thus creating the likelihood that

orders in those areas will be awarded on a sole-source basis; however, each awardee need not be

capable of performing every requirement as well as any other awardee under the contracts. The

contracting officer should consider the following when determining the number of contracts to be

awarded:

(1) The scope and complexity of the contract requirement.

(2) The expected duration and frequency of task or delivery orders.

(3) The mix of resources a contractor must have to perform expected task or delivery order

requirements.

(4) The ability to maintain competition among the awardees throughout the contracts’ period of

performance.

(B) The contracting officer must not use the multiple award approach if-

(1) Only one contractor is capable of providing performance at the level of quality required because

the supplies or services are unique or highly specialized;
(2) Based on the contracting officer’s knowledge of the market, more favorable terms and

conditions, including pricing, will be provided if a single award is made;

(3) The expected cost of administration of multiple contracts outweighs the expected benefits of

making multiple awards;

(4) The projected task orders are so integrally related that only a single contractor can reasonably

perform the work;

(5) The total estimated value of the contract is at or below the simplified acquisition threshold; or

(6) Multiple awards would not be in the best interests of the Government.

(C) The contracting officer must document the decision whether or not to use multiple awards in the

acquisition plan or contract file. The contracting officer may determine that a class of acquisitions is

not appropriate for multiple awards (see subpart 1.7).

(D)

(1) No task or delivery order contract in an amount estimated to exceed $100 million (including all

options) may be awarded to a single source unless the head of the agency determines in writing that-

(i) The task or delivery orders expected under the contract are so integrally related that only a single

source can reasonably perform the work;

(ii) The contract provides only for firm-fixed price (see 16.202) task or delivery orders for-

(A) Products for which unit prices are established in the contract; or

(B) Services for which prices are established in the contract for the specific tasks to be performed;

(iii) Only one source is qualified and capable of performing the work at a reasonable price to the

Government; or

(iv) It is necessary in the public interest to award the contract to a single source due to exceptional

circumstances.

(2) The head of the agency must notify Congress within 30 days after any determination under

paragraph (c)(1)(ii)(D)(1)(iv) of this section.

(3) The requirement for a determination for a single-award contract greater than $100 million-

(i) Is in addition to any applicable requirements of subpart 6.3; and

(ii) Is not applicable for architect-engineer services awarded pursuant to subpart 36.6.

(2) Contracts for advisory and assistance services.

(i) Except as provided in paragraph (c)(2)(ii) of this section, if an indefinite-quantity contract for

advisory and assistance services exceeds 3 years and $15 million, including all options, the

contracting officer must make multiple awards unless-
(A) The contracting officer or other official designated by the head of the agency determines in

writing, as part of acquisition planning, that multiple awards are not practicable. The contracting

officer or other official must determine that only one contractor can reasonably perform the work

because either the scope of work is unique or highly specialized or the tasks so integrally related;

(B) The contracting officer or other official designated by the head of the agency determines in

writing, after the evaluation of offers, that only one offeror is capable of providing the services

required at the level of quality required; or

(C) Only one offer is received.

(ii) The requirements of paragraph (c)(2)(i) of this section do not apply if the contracting officer or

other official designated by the head of the agency determines that the advisory and assistance

services are incidental and not a significant component of the contract.

16.505 Ordering.

(a) General.

(1) In general, the contracting officer does not synopsize orders under indefinite-delivery contracts;

except see 16.505(a)(4) and (11), and 16.505(b)(2)(ii)(D).

(2) Individual orders shall clearly describe all services to be performed or supplies to be delivered so

the full cost or price for the performance of the work can be established when the order is placed.

Orders shall be within the scope, issued within the period of performance, and be within the

maximum value of the contract.

(3) Performance-based acquisition methods must be used to the maximum extent practicable, if the

contract or order is for services (see 37.102(a) and subpart 37.6).

(4) The following requirements apply when procuring items peculiar to one manufacturer:

(i) The contracting officer must justify restricting consideration to an item peculiar to one

manufacturer (e.g., a particular brand-name, product, or a feature of a product that is peculiar to

one manufacturer). A brand-name item, even if available on more than one contract, is an item

peculiar to one manufacturer. Brand-name specifications shall not be used unless the particular

brand-name, product, or feature is essential to the Government’s requirements and market research

indicates other companies’ similar products, or products lacking the particular feature, do not meet,

or cannot be modified to meet, the agency’s needs.

(ii) Requirements for use of items peculiar to one manufacturer shall be justified and approved using

the format(s) and requirements from paragraphs (b)(2)(ii)(A), (B), and (C) of this section, modified to

show the brand-name justification. A justification is required unless a justification covering the

requirements in the order was previously approved for the contract in accordance with 6.302-1(c) or

unless the base contract is a single-award contract awarded under full and open competition.

Justifications for the use of brand-name specifications must be completed and approved at the time

the requirement for a brand-name is determined.

(iii)
(A) For an order in excess of $30,000, the contracting officer shall—

(1) Post the justification and supporting documentation on the agency website used (if any) to solicit

offers for orders under the contract; or

(2) Provide the justification and supporting documentation along with the solicitation to all contract

awardees.

(B) The justifications for brand-name acquisitions may apply to the portion of the acquisition

requiring the brand-name item. If the justification is to cover only the portion of the acquisition

which is brand-name, then it should so state; the approval level requirements will then only apply to

that portion.

(C) The requirements in paragraph (a)(4)(iii)(A) of this section do not apply when disclosure would

compromise the national security (e.g., would result in disclosure of classified information) or create

other security risks.

(D) The justification is subject to the screening requirement in paragraph (b)(2)(ii)(D)(4) of this

section.

(5) When acquiring information technology and related services, consider the use of modular

contracting to reduce program risk (see 39.103(a)).

(6) Orders may be placed by using any medium specified in the contract.

(7) Orders placed under indefinite-delivery contracts must contain the following information:

(i) Date of order.

(ii) Contract number and order number.

(iii) For supplies and services, line item number, subline item number (if applicable), description,

quantity, and unit price or estimated cost and fee (as applicable). The corresponding line item

number and subline item number from the base contract shall also be included.

(iv) Delivery or performance schedule.

(v) Place of delivery or performance (including consignee).

(vi) Any packaging, packing, and shipping instructions.

(vii) Accounting and appropriation data.

(viii) Method of payment and payment office, if not specified in the contract (see 32.1110(e)).

(ix) North American Industry Classification System code (see 19.102(b)(3)).

(8) Orders placed under a task-order contract or delivery-order contract awarded by another agency

(i.e.,a Governmentwide acquisition contract, or multi-agency contract)—

(i) Are not exempt from the development of acquisition plans (see subpart 7.1), and an information

technology acquisition strategy (see part 39);

(ii) May not be used to circumvent conditions and limitations imposed on the use of funds (e.g., 31
U.S.C.1501(a)(1)); and

(iii) Shall comply with all FAR requirements for a consolidated or bundled contract when the order

meets the definition at 2.101(b) of "consolidation" or "bundling".

(9) In accordance with section 1427(b) of Public Law 108-136 (40 U.S.C. 1103 note), orders placed

under multi-agency contracts for services that substantially or to a dominant extent specify

performance of architect-engineer services, as defined in 2.101, shall—

(i) Be awarded using the procedures at subpart 36.6; and

(ii) Require the direct supervision of a professional architect or engineer licensed, registered or

certified in the State, Federal District, or outlying area, in which the services are to be performed.

(10)

(i) No protest under subpart 33.1 is authorized in connection with the issuance or proposed issuance

of an order under a task-order contract or delivery-order contract, except—

(A) A protest on the grounds that the order increases the scope, period, or maximum value of the

contract; or

(B)

(1) For agencies other than DoD, NASA, and the Coast Guard, a protest of an order valued in excess

of $10 million (41 U.S.C. 4106(f)); or

(2) For DoD, NASA, or the Coast Guard, a protest of an order valued in excess of $25 million (10

U.S.C. 3406(f)).

(ii) Protests of orders in excess of the thresholds stated in 16.505(a)(10)(i)(B) may only be filed with

the Government Accountability Office, in accordance with the procedures at 33.104.

(iii) For protests of small business size status for set-aside orders, see 19.302.

(11) Publicize orders funded in whole or in part by the American Recovery and Reinvestment Act of

2009 (Pub. L. 111-5) as follows:

(i) Notices of proposed orders shall follow the procedures in 5.704 for posting orders.

(ii) Award notices for orders shall follow the procedures in 5.705.

(12) When using the Governmentwide commercial purchase card as a method of payment, orders at

or below the micro-purchase threshold are exempt from verification in the System for Award

Management as to whether the contractor has a delinquent debt subject to collection under the

Treasury Offset Program (TOP).

(b) Orders under multiple-award contracts—

(1) Fair opportunity.
(i) The contracting officer must provide each awardee a fair opportunity to be considered for each

order exceeding the micro-purchase threshold issued under multiple delivery-order contracts or

multiple task-order contracts, except—

(A) As provided for in paragraph (b)(2) of this section; or

(B) Orders issued under 19.504(c)(1)(ii).

(ii) The contracting officer may exercise broad discretion in developing appropriate order placement

procedures. The contracting officer should keep submission requirements to a minimum.

Contracting officers may use streamlined procedures, including oral presentations. If the order does

not exceed the simplified acquisition threshold, the contracting officer need not contact each of the

multiple awardees under the contract before selecting an order awardee if the contracting officer

has information available to ensure that each awardee is provided a fair opportunity to be

considered for each order. The competition requirements in part 6 and the policies in subpart 15.3

do not apply to the ordering process. However, the contracting officer shall—

(A) Develop placement procedures that will provide each awardee a fair opportunity to be

considered for each order and that reflect the requirement and other aspects of the contracting

environment;

(B) Not use any method (such as allocation or designation of any preferred awardee) that would not

result in fair consideration being given to all awardees prior to placing each order;

(C) Tailor the procedures to each acquisition;

(D) Include the procedures in the solicitation and the contract;

(E) Consider price or cost under each order as one of the factors in the selection decision;

(F)Except for DoD, ensure the criteria at 15.101-2(c)(1)-(5) are met when using the lowest price

technically acceptable source selection process; and

(G)Except for DoD, avoid using the lowest price technically acceptable source selection process to

acquire certain supplies and services in accordance with 15.101-2(d).

(iii) Orders exceeding the simplified acquisition threshold.

(A) Each order exceeding the simplified acquisition threshold shall be placed on a competitive basis

in accordance with paragraph (b)(1)(iii)(B) of this section, unless supported by a written

determination that one of the circumstances described at 16.505(b)(2)(i) applies to the order and the

requirement is waived on the basis of a justification that is prepared in accordance with

16.505(b)(2)(ii)(B);

(B) The contracting officer shall—

(1) Provide a fair notice of the intent to make a purchase, including a clear description of the

supplies to be delivered or the services to be performed and the basis upon which the selection will

be made to all contractors offering the required supplies or services under the multiple-award

contract; and

(2) Afford all contractors responding to the notice a fair opportunity to submit an offer and have that
offer fairly considered.

(iv) Orders exceeding $6 million. For task or delivery orders in excess of $6 million, the requirement

to provide all awardees a fair opportunity to be considered for each order shall include, at a

minimum—

(A) A notice of the task or delivery order that includes a clear statement of the agency’s

requirements;

(B) A reasonable response period;

(C) Disclosure of the significant factors and subfactors, including cost or price, that the agency

expects to consider in evaluating proposals, and their relative importance;

(D) Where award is made on a best value basis, a written statement documenting the basis for award

and the relative importance of quality and price or cost factors; and

(E) An opportunity for a postaward debriefing in accordance with paragraph (b)(6) of this section.

(v) The contracting officer should consider the following when developing the procedures:

(A)

(1) Past performance on earlier orders under the contract, including quality, timeliness and cost

control.

(2) Potential impact on other orders placed with the contractor.

(3) Minimum order requirements.

(4) The amount of time contractors need to make informed business decisions on whether to respond

to potential orders.

(5) Whether contractors could be encouraged to respond to potential orders by outreach efforts to

promote exchanges of information, such as—

(i) Seeking comments from two or more contractors on draft statements of work;

(ii) Using a multiphased approach when effort required to respond to a potential order may be

resource intensive (e.g., requirements are complex or need continued development), where all

contractors are initially considered on price considerations (e.g., rough estimates), and other

considerations as appropriate (e.g.,proposed conceptual approach, past performance). The

contractors most likely to submit the highest value solutions are then selected for one-on-one

sessions with the Government to increase their understanding of the requirements, provide

suggestions for refining requirements, and discuss risk reduction measures.

(B) Formal evaluation plans or scoring of quotes or offers are not required.

(2) Exceptions to the fair opportunity process.

(i) The contracting officer shall give every awardee a fair opportunity to be considered for a delivery

order or task order exceeding the micro-purchase threshold unless one of the following statutory
exceptions applies:

(A) The agency need for the supplies or services is so urgent that providing a fair opportunity would

result in unacceptable delays.

(B) Only one awardee is capable of providing the supplies or services required at the level of quality

required because the supplies or services ordered are unique or highly specialized.

(C) The order must be issued on a sole-source basis in the interest of economy and efficiency

because it is a logical follow-on to an order already issued under the contract, provided that all

awardees were given a fair opportunity to be considered for the original order.

(D) It is necessary to place an order to satisfy a minimum guarantee.

(E) For orders exceeding the simplified acquisition threshold, a statute expressly authorizes or

requires that the purchase be made from a specified source.

(F) In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r)), contracting officers

may, at their discretion, set aside orders for any of the small business concerns identified in

19.000(a)(3). When setting aside orders for small business concerns, the specific small business

program eligibility requirements identified in part 19 apply.

(G) For DoD, NASA, and the Coast Guard, the order satisfies one of the exceptions permitting the

use of other than full and open competition listed in 6.302 (10 U.S.C. 3406(c)(5)). The public interest

exception shall not be used unless Congress is notified in accordance with 10 U.S.C. 3204(a)(7).

(ii) The justification for an exception to fair opportunity shall be in writing as specified in paragraph

(b)(2)(ii)(A) or (B) of this section. No justification is needed for the exception described in paragraph

(b)(2)(i)(F) of this section.

(A) Orders exceeding the micro-purchase threshold, but not exceeding the simplified acquisition

threshold. The contracting officer shall document the basis for using an exception to the fair

opportunity process. If the contracting officer uses the logical follow-on exception, the rationale shall

describe why the relationship between the initial order and the follow-on is logical (e.g., in terms of

scope, period of performance, or value).

(B) Orders exceeding the simplified acquisition threshold. As a minimum, each justification shall

include the following information and be approved in accordance with paragraph (b)(2)(ii)(C) of this

section:

(1) Identification of the agency and the contracting activity, and specific identification of the

document as a "Justification for an Exception to Fair Opportunity."

(2) Nature and/or description of the action being approved.

(3) A description of the supplies or services required to meet the agency’s needs (including the

estimated value).

(4) Identification of the exception to fair opportunity (see 16.505(b)(2)) and the supporting rationale,

including a demonstration that the proposed contractor’s unique qualifications or the nature of the

acquisition requires use of the exception cited. If the contracting officer uses the logical follow-on

exception, the rationale shall describe why the relationship between the initial order and the followon is logical (e.g., in terms of scope, period of performance, or value).
(5) A determination by the contracting officer that the anticipated cost to the Government will be

fair and reasonable.

(6) Any other facts supporting the justification.

(7) A statement of the actions, if any, the agency may take to remove or overcome any barriers that

led to the exception to fair opportunity before any subsequent acquisition for the supplies or services

is made.

(8) The contracting officer’s certification that the justification is accurate and complete to the best of

the contracting officer’s knowledge and belief.

(9) Evidence that any supporting data that is the responsibility of technical or requirements

personnel (e.g., verifying the Government’s minimum needs or requirements or other rationale for

an exception to fair opportunity) and which form a basis for the justification have been certified as

complete and accurate by the technical or requirements personnel.

(10) A written determination by the approving official that one of the circumstances in paragraphs

(b)(2)(i)(A) through (E) and (G) of this section applies to the order.

(C) Approval.

(1) For proposed orders exceeding the simplified acquisition threshold, but not exceeding $750,000,

the ordering activity contracting officer’s certification that the justification is accurate and complete

to the best of the ordering activity contracting officer’s knowledge and belief will serve as approval,

unless a higher approval level is established in accordance with agency procedures.

(2) For a proposed order exceeding $750,000, but not exceeding $15 million, the justification must

be approved by the advocate for competition of the activity placing the order, or by an official named

in paragraph (b)(2)(ii)(C)(3) or (4) of this section. This authority is not delegable.

(3) For a proposed order exceeding $15 million, but not exceeding $75 million (or, for DoD, NASA,

and the Coast Guard, not exceeding $100 million), the justification must be approved by—

(i) The head of the procuring activity placing the order;

(ii) A designee who—

(A) If a member of the armed forces, is a general or flag officer;

(B) If a civilian, is serving in a position in a grade above GS-15 under the General Schedule (or in a

comparable or higher position under another schedule); or

(iii) An official named in paragraph (b)(2)(ii)(C)(4)of this section.

(4) For a proposed order exceeding $75 million (or, for DoD, NASA, and the Coast Guard, over $100

million), the justification must be approved by the senior procurement executive of the agency

placing the order. This authority is not delegable, except in the case of the Under Secretary of

Defense for Acquisition and Sustainment, acting as the senior procurement executive for the

Department of Defense.

(D) Posting.
(1) Except as provided in paragraph (b)(2)(ii)(D)(5) of this section, within 14 days after placing an

order exceeding the simplified acquisition threshold that does not provide for fair opportunity in

accordance with 16.505(b), the contract officer shall—

(i) Publish a notice in accordance with 5.301; and

(ii) Make publicly available the justification required at of this section.

(2) The justification shall be made publicly available—

(i) At the GPE https://www.sam.gov;

(ii) On the Web site of the agency, which may provide access to the justifications by linking to the

GPE; and

(iii) Must remain posted for a minimum of 30 days.

(3) In the case of an order permitted under paragraph (b)(2)(i)(A) of this section, the justification

shall be posted within 30 days after award of the order.

(4) Contracting officers shall carefully screen all justifications for contractor proprietary data and

remove all such data, and such references and citations as are necessary to protect the proprietary

data, before making the justifications available for public inspection. Contracting officers shall also

be guided by the exemptions to disclosure of information contained in the Freedom of Information

Act (5 U.S.C.552) and the prohibitions against disclosure in 24.202 in determining whether other

data should be removed. Although the submitter notice process set out in Executive Order 12600

"Predisclosure Notification Procedures for Confidential Commercial Information" does not apply, if

the justification appears to contain proprietary data, the contracting officer should provide the

contractor that submitted the information an opportunity to review the justification for proprietary

data before making the justification available for public inspection, redacted as necessary. This

process must not prevent or delay the posting of the justification in accordance with the timeframes

required in paragraphs (b)(2)(ii)(D)(1) and (3) of this section.

(5) The posting requirement of this section does not apply—

(i) When disclosure would compromise the national security (e.g., would result in disclosure of

classified information) or create other security risks; or

(ii) To a small business set-aside under paragraph (b)(2)(i)(F)

(3) Pricing orders. If the contract did not establish the price for the supply or service, the

contracting officer must establish prices for each order using the policies and methods in subpart

15.4.

(4) Cost reimbursement orders. For additional requirements for cost-reimbursement orders, see

16.301-3.

(5) Time-and-materials or labor-hour orders. For additional requirements for time-and-materials or

labor-hour orders, see 16.601(e).

(6) Postaward Notices and debriefing of awardees for orders exceeding $6 million.The contracting

officer shall notify unsuccessful awardees when the total price of a task or delivery order exceeds $6

million.
(i) The procedures at 15.503(b)(1) shall be followed when providing postaward notification to

unsuccessful awardees.

(ii) The procedures at 15.506 shall be followed when providing postaward debriefing to unsuccessful

awardees.

(iii) A summary of the debriefing shall be included in the task or delivery order file.

(7) Decision documentation for orders.

(i) The contracting officer shall document in the contract file the rationale for placement and price of

each order, including the basis for award and the rationale for any tradeoffs among cost or price and

non-cost considerations in making the award decision. This documentation need not quantify the

tradeoffs that led to the decision.

(ii) The contract file shall also identify the basis for using an exception to the fair opportunity

process (see paragraph (b)(2) of this section).

(iii)Except for DoD, the contracting officer shall document in the contract file a justification for use

of the lowest price technically acceptable source selection process, when applicable.

(8) Task-order and delivery-order ombudsman. The head of the agency shall designate a task-order

and delivery-order ombudsman. The ombudsman must review complaints from contractors and

ensure they are afforded a fair opportunity to be considered, consistent with the procedures in the

contract. The ombudsman must be a senior agency official who is independent of the contracting

officer and may be the agency’s advocate for competition.

(9) Small business.The contracting officer should rely on the small business representations at the

contract level (but see section 19.301-2(b)(2) for order rerepresentations).

(c) Limitation on ordering period for task-order contracts for advisory and assistance services.

(1) Except as provided for in paragraphs (c)(2) and (3) of this section, the ordering period of a taskorder contract for advisory and assistance services, including all options or modifications, normally

may not exceed 5 years.

(2) The 5-year limitation does not apply when—

(i) A longer ordering period is specifically authorized by a statute; or

(ii) The contract is for an acquisition of supplies or services that includes the acquisition of advisory

and assistance services and the contracting officer, or other official designated by the head of the

agency, determines that the advisory and assistance services are incidental and not a significant

component of the contract.

(3) The contracting officer may extend the contract on a sole-source basis only once for a period not

to exceed 6 months if the contracting officer, or other official designated by the head of the agency,

determines that—

(i) The award of a follow-on contract is delayed by circumstances that were not reasonably

foreseeable at the time the initial contract was entered into; and
(ii) The extension is necessary to ensure continuity of services, pending the award of the follow-on

contract.

16.506 Solicitation provisions and contract clauses.

(a) Insert the clause at 52.216-18, Ordering, in solicitations and contracts when a definite-quantity

contract, a requirements contract, or an indefinite-quantity contract is contemplated.

(b) Insert a clause substantially the same as the clause at 52.216-19, Order Limitations, in

solicitations and contracts when a definite-quantity contract, a requirements contract, or an

indefinite-quantity contract is contemplated.

(c) Insert the clause at 52.216-20, Definite Quantity, in solicitations and contracts when a definitequantity contract is contemplated.

(d)

(1) Insert the clause at 52.216-21, Requirements, in solicitations and contracts when a requirements

contract is contemplated.

(2) If the contract is for nonpersonal services and related supplies and covers estimated

requirements that exceed a specific Government activity’s internal capability to produce or perform,

use the clause with its Alternate I.

(3) If the contract includes subsistence for both Government use and resale in the same Schedule,

and similar products may be acquired on a brand-name basis, use the clause with its Alternate II

(but see paragraph (d)(5) of this section).

(4) If the contract involves a partial small business set-aside, use the clause with its Alternate III (but

see paragraph (d)(5) of this section).

(5) If the contract-

(i) Includes subsistence for Government use and resale in the same schedule and similar products

may be acquired on a brand-name basis; and

(ii) Involves a partial small business set-aside, use the clause with its Alternate IV.

(e) Insert the clause at 52.216-22, Indefinite Quantity, in solicitations and contracts when an

indefinite-quantity contract is contemplated.

(f) Insert the provision at 52.216-27, Single or Multiple Awards, in solicitations for indefinitequantity contracts that may result in multiple contract awards. Modify the provision to specify the

estimated number of awards. Do not use this provision for advisory and assistance services contracts

that exceed 3 years and $15 million (including all options).

(g) Insert the provision at 52.216-28, Multiple Awards for Advisory and Assistance Services, in

solicitations for task-order contracts for advisory and assistance services that exceed 3 years and

$15 million (including all options), unless a determination has been made under 16.504(c)(2)(i)(A).

Modify the provision to specify the estimated number of awards.
(h) See 10.001(d) for insertion of the clause at 52.210-1, Market Research, when the contract is over

$6 million for the procurement of items other than commercial products or commercial services.

(i) See 7.107-6 for use of 52.207-6, Solicitation of Offers from Small Business Concerns and Small

Business Teaming Arrangement or Joint Ventures (Multiple-Award Contracts) in solicitations for

multiple-award contracts above the substantial bundling threshold of the agency.

(j) Insert the clause at 52.216-32, Task-Order and Delivery-Order Ombudsman, in solicitations and

contracts when a multiple-award indefinite-delivery indefinite-quantity contract is contemplated.

Use the clause with its Alternate I when the contract will be available for use by multiple agencies

(e.g., Governmentwide acquisition contracts or multi-agency contracts). When placing orders under

the multiple-award contract available for use by multiple agencies, the ordering activity's

contracting officer shall complete paragraph (d)(2) and include Alternate I in the notice of intent to

place an order, and in the resulting order.

Subpart 16.6 - Time-and-Materials, Labor-Hour, and Letter

Contracts

16.600 Scope.

Time-and-materials contracts and labor-hour contracts are not fixed-price contracts.

16.601 Time-and-materials contracts.

(a) Definitions for the purposes of Time-and-Materials Contracts.

Direct materials means those materials that enter directly into the end product, or that are used or

consumed directly in connection with the furnishing of the end product or service.

Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor

category qualifications of a labor category specified in the contract that are-

(1) Performed by the contractor;

(2) Performed by the subcontractors; or

(3) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common

control.

Materials means-

(1) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of

the contractor under a common control;

(2) Subcontracts for supplies and incidental services for which there is not a labor category specified

in the contract;

(3) Other direct costs (e.g., incidental services for which there is not a labor category specified in the
contract, travel, computer usage charges, etc.); and

(4) Applicable indirect costs.

(b) Description. A time-and-materials contract provides for acquiring supplies or services on the

basis of-

(1) Direct labor hours at specified fixed hourly rates that include wages, overhead, general and

administrative expenses, and profit; and

(2) Actual cost for materials (except as provided for in 31.205-26(e) and (f)).

(c) Application. A time-and-materials contract may be used only when it is not possible at the time of

placing the contract to estimate accurately the extent or duration of the work or to anticipate costs

with any reasonable degree of confidence. See 12.207(b) for the use of time-and-material contracts

for certain commercial services.

(1) Government surveillance. A time-and-materials contract provides no positive profit incentive to

the contractor for cost control or labor efficiency. Therefore, appropriate Government surveillance of

contractor performance is required to give reasonable assurance that efficient methods and effective

cost controls are being used.

(2) Fixed hourly rates.

(i) The contract shall specify separate fixed hourly rates that include wages, overhead, general and

administrative expenses, and profit for each category of labor (see 16.601(f)(1)).

(ii) For acquisitions of other than commercial products or commercial services awarded without

adequate price competition (see 15.403-1(c)(1)), the contract shall specify separate fixed hourly

rates that include wages, overhead, general and administrative expenses, and profit for each

category of labor to be performed by-

(A) The contractor;

(B) Each subcontractor; and

(C) Each division, subsidiary, or affiliate of the contractor under a common control.

(iii) For contract actions that are not awarded using competitive procedures, unless exempt under

paragraph (c)(2)(iv) of this section, the fixed hourly rates for services transferred between divisions,

subsidiaries, or affiliates of the contractor under a common control-

(A) Shall not include profit for the transferring organization; but

(B) May include profit for the prime contractor.

(iv) For contract actions that are not awarded using competitive procedures, the fixed hourly rates

for services that meet the definition of “commercial service” that are transferred between divisions,

subsidiaries, or affiliates of the contractor under a common control may be the established catalog

or market rate when-

(A) It is the established practice of the transferring organization to price interorganizational

transfers at other than cost for commercial work of the contractor or any division, subsidiary or
affiliate of the contractor under a common control; and

(B) The contracting officer has not determined the price to be unreasonable.

(3) Material handling costs. When included as part of material costs, material handling costs shall

include only costs clearly excluded from the labor-hour rate. Material handling costs may include all

appropriate indirect costs allocated to direct materials in accordance with the contractor's usual

accounting procedures consistent with part 31.

(d) Limitations. A time-and-materials contract or order may be used only if-

(1) The contracting officer prepares a determination and findings that no other contract type is

suitable. The determination and finding shall be-

(i) Signed by the contracting officer prior to the execution of the base period or any option periods of

the contracts; and

(ii) Approved by the head of the contracting activity prior to the execution of the base period when

the base period plus any option periods exceeds three years; and

(2) The contract or order includes a ceiling price that the contractor exceeds at its own risk. Also see

12.207 (b) for further limitations on use of time-and-materials or labor-hour contracts for acquisition

of commercial products and commercial services.

(e) Post award requirements. Prior to an increase in the ceiling price of a time-and-materials or

labor-hour contract or order, the contracting officer shall-

(1) Conduct an analysis of pricing and other relevant factors to determine if the action is in the best

interest of the Government;

(2) Document the decision in the contract or order file; and

(3) When making a change that modifies the general scope of-

(i) A contract, follow the procedures at 6.303;

(ii) An order issued under the Federal Supply Schedules, follow the procedures at 8.405-6; or

(iii) An order issued under multiple award task and delivery order contracts, follow the procedures

at 16.505(b)(2).

(f) Solicitation provisions.

(1) The contracting officer shall insert the provision at 52.216-29, Time-and-Materials/Labor-Hour

Proposal Requirements—Other Than Commercial Acquisition With Adequate Price Competition, in

solicitations contemplating use of a time-and-materials or labor-hour type of contract for the

acquisition of other than commercial products or commercial services, if the price is expected to be

based on adequate price competition. If authorized by agency procedures, the contracting officer

may amend the provision to make mandatory one of the three approaches in paragraph (c) of the

provision, and/or to require the identification of all subcontractors, divisions, subsidiaries, or

affiliates included in a blended labor rate.

(2) The contracting officer shall insert the provision at 52.216-30, Time-and-Materials/Labor-Hour
Proposal Requirements—Other Than Commercial Acquisition Without Adequate Price Competition,

in solicitations for the acquisition of other than commercial products or commercial services

contemplating use of a time-and-materials or labor-hour type of contract if the price is not expected

to be based on adequate price competition.

(3) The contracting officer shall insert the provision at 52.216-31, Time-and-Materials/Labor-Hour

Proposal Requirements—Commercial Acquisition, in solicitations contemplating use of a commercial

time-and-materials or labor-hour contract.

16.602 Labor-hour contracts.

Description. A labor-hour contract is a variation of the time-and-materials contract, differing only in

that materials are not supplied by the contractor. See 12.207(b),16.601(c), and 16.601(d) for

application and limitations, for time-and-materials contracts that also apply to labor-hour contracts.

See 12.207(b) for the use of labor-hour contracts for certain commercial services.

16.603 Letter contracts.

16.603-1 Description.

A letter contract is a written preliminary contractual instrument that authorizes the contractor to

begin immediately manufacturing supplies or performing services.

16.603-2 Application.

(a) A letter contract may be used when (1) the Government’s interests demand that the contractor

be given a binding commitment so that work can start immediately and (2) negotiating a definitive

contract is not possible in sufficient time to meet the requirement. However, a letter contract should

be as complete and definite as feasible under the circumstances.

(b) When a letter contract award is based on price competition, the contracting officer shall include

an overall price ceiling in the letter contract.

(c) Each letter contract shall, as required by the clause at 52.216-25, Contract Definitization, contain

a negotiated definitization schedule including (1) dates for submission of the contractor's price

proposal, required certified cost or pricing data and data other than certified cost or pricing data;

and, if required, make-or-buy and subcontracting plans, (2) a date for the start of negotiations, and

(3) a target date for definitization, which shall be the earliest practicable date for definitization. The

schedule will provide for definitization of the contract within 180 days after the date of the letter

contract or before completion of 40 percent of the work to be performed, whichever occurs first.

However, the contracting officer may, in extreme cases and according to agency procedures,

authorize an additional period. If, after exhausting all reasonable efforts, the contracting officer and

the contractor cannot negotiate a definitive contract because of failure to reach agreement as to

price or fee, the clause at 52.216-25 requires the contractor to proceed with the work and provides

that the contracting officer may, with the approval of the head of the contracting activity, determine

a reasonable price or fee in accordance with subpart 15.4 and part 31, subject to appeal as

provided in the Disputes clause.
(d) The maximum liability of the Government inserted in the clause at 52.216-24, Limitation of

Government Liability, shall be the estimated amount necessary to cover the contractor’s

requirements for funds before definitization. However, it shall not exceed 50 percent of the

estimated cost of the definitive contract unless approved in advance by the official that authorized

the letter contract.

(e) The contracting officer shall assign a priority rating to the letter contract if it is appropriate

under 11.604.

16.603-3 Limitations.

A letter contract may be used only after the head of the contracting activity or a designee

determines in writing that no other contract is suitable. Letter contracts shall not-

(a) Commit the Government to a definitive contract in excess of the funds available at the time the

letter contract is executed;

(b) Be entered into without competition when competition is required by part 6; or

(c) Be amended to satisfy a new requirement unless that requirement is inseparable from the

existing letter contract. Any such amendment is subject to the same requirements and limitations as

a new letter contract.

16.603-4 Contract clauses.

(a) The contracting officer shall include in each letter contract the clauses required by this

regulation for the type of definitive contract contemplated and any additional clauses known to be

appropriate for it.

(b) In addition, the contracting officer shall insert the following clauses in solicitations and contracts

when a letter contract is contemplated:

(1) The clause at 52.216-23, Execution and Commencement of Work, except that this clause may be

omitted from letter contracts awarded on SF 26;

(2) The clause at 52.216-24, Limitation of Government Liability, with dollar amounts completed in a

manner consistent with 16.603-2(d); and

(3) The clause at 52.216-25, Contract Definitization, with its paragraph (b) completed in a manner

consistent with 16.603-2(c). If at the time of entering into the letter contract, the contracting officer

knows that the definitive contract will be based on adequate price competition or will otherwise

meet the criteria of 15.403-1 for not requiring submission of certified cost or pricing data, the words

"and certified cost or pricing data in accordance with FAR 15.408, Table 15-2 supporting its

proposal" may be deleted from paragraph (a) of the clause. If the letter contract is being awarded on

the basis of price competition, the contracting officer shall use the clause with its Alternate I.

(c) The contracting officer shall also insert the clause at 52.216-26, Payments of Allowable Costs

Before Definitization, in solicitations and contracts if a cost-reimbursement definitive contract is

contemplated, unless the acquisition involves conversion, alteration, or repair of ships.
Subpart 16.7 - Agreements

16.701 Scope.

This subpart prescribes policies and procedures for establishing and using basic agreements and

basic ordering agreements. (See 13.303 for blanket purchase agreements (BPA’s) and see 35.015(b)

for additional coverage of basic agreements with educational institutions and nonprofit

organizations.)

16.702 Basic agreements.

(a) Description. A basic agreement is a written instrument of understanding, negotiated between an

agency or contracting activity and a contractor, that (1) contains contract clauses applying to future

contracts between the parties during its term and (2) contemplates separate future contracts that

will incorporate by reference or attachment the required and applicable clauses agreed upon in the

basic agreement. A basic agreement is not a contract.

(b) Application. A basic agreement should be used when a substantial number of separate contracts

may be awarded to a contractor during a particular period and significant recurring negotiating

problems have been experienced with the contractor. Basic agreements may be used with negotiated

fixed-price or cost-reimbursement contracts.

(1) Basic agreements shall contain-

(i) Clauses required for negotiated contracts by statute, executive order, and this regulation; and

(ii) Other clauses prescribed in this regulation or agency acquisition regulations that the parties

agree to include in each contract as applicable.

(2) Each basic agreement shall provide for discontinuing its future applicability upon 30 days’

written notice by either party.

(3) Each basic agreement shall be reviewed annually before the anniversary of its effective date and

revised as necessary to conform to the requirements of this regulation. Basic agreements may need

to be revised before the annual review due to mandatory statutory requirements. A basic agreement

may be changed only by modifying the agreement itself and not by a contract incorporating the

agreement.

(4) Discontinuing or modifying a basic agreement shall not affect any prior contract incorporating

the basic agreement.

(5) Contracting officers of one agency should obtain and use existing basic agreements of another

agency to the maximum practical extent.

(c) Limitations. A basic agreement shall not-

(1) Cite appropriations or obligate funds;

(2) State or imply any agreement by the Government to place future contracts or orders with the
contractor; or

(3) Be used in any manner to restrict competition.

(d) Contracts incorporating basic agreements.

(1) Each contract incorporating a basic agreement shall include a scope of work and price, delivery,

and other appropriate terms that apply to the particular contract. The basic agreement shall be

incorporated into the contract by specific reference (including reference to each amendment) or by

attachment.

(2) The contracting officer shall include clauses pertaining to subjects not covered by the basic

agreement, but applicable to the contract being negotiated, in the same manner as if there were no

basic agreement.

(3) If an existing contract is modified to effect new acquisition, the modification shall incorporate the

most recent basic agreement, which shall apply only to work added by the modification, except that

this action is not mandatory if the contract or modification includes all clauses required by statute,

executive order, and this regulation as of the date of the modification. However, if it is in the

Government’s interest and the contractor agrees, the modification may incorporate the most recent

basic agreement for application to the entire contract as of the date of the modification.

16.703 Basic ordering agreements.

(a) Description. A basic ordering agreement is a written instrument of understanding, negotiated

between an agency, contracting activity, or contracting office and a contractor, that contains (1)

terms and clauses applying to future contracts (orders) between the parties during its term, (2)a

description, as specific as practicable, of supplies or services to be provided, and (3) methods for

pricing, issuing, and delivering future orders under the basic ordering agreement. A basic ordering

agreement is not a contract.

(b) Application. A basic ordering agreement may be used to expedite contracting for uncertain

requirements for supplies or services when specific items, quantities, and prices are not known at

the time the agreement is executed, but a substantial number of requirements for the type of

supplies or services covered by the agreement are anticipated to be purchased from the contractor.

Under proper circumstances, the use of these procedures can result in economies in ordering parts

for equipment support by reducing administrative lead-time, inventory investment, and inventory

obsolescence due to design changes.

(c) Limitations. A basic ordering agreement shall not state or imply any agreement by the

Government to place future contracts or orders with the contractor or be used in any manner to

restrict competition.

(1) Each basic ordering agreement shall-

(i) Describe the method for determining prices to be paid to the contractor for the supplies or

services;

(ii) Include delivery terms and conditions or specify how they will be determined;

(iii) List one or more Government activities authorized to issue orders under the agreement;
(iv) Specify the point at which each order becomes a binding contract (e.g., issuance of the order,

acceptance of the order in a specified manner, or failure to reject the order within a specified

number of days);

(v) Provide that failure to reach agreement on price for any order issued before its price is

established (see paragraph (d)(3) of this section) is a dispute under the Disputes clause included in

the basic ordering agreement; and

(vi) If fast payment procedures will apply to orders, include the special data required by 13.403.

(2) Each basic ordering agreement shall be reviewed annually before the anniversary of its effective

date and revised as necessary to conform to the requirements of this regulation. Basic ordering

agreements may need to be revised before the annual review due to mandatory statutory

requirements. A basic ordering agreement shall be changed only by modifying the agreement itself

and not by individual orders issued under it. Modifying a basic ordering agreement shall not

retroactively affect orders previously issued under it.

(d) Orders. A contracting officer representing any Government activity listed in a basic ordering

agreement may issue orders for required supplies or services covered by that agreement.

(1) Before issuing an order under a basic ordering agreement, the contracting officer shall-

(i) Obtain competition in accordance with part 6;

(ii) If the order is being placed after competition, ensure that use of the basic ordering agreement is

not prejudicial to other offerors; and

(iii) Sign or obtain any applicable justifications and approvals, and any determination and findings,

and comply with other requirements in accordance with 1.602-1(b), as if the order were a contract

awarded independently of a basic ordering agreement.

(2) Contracting officers shall-

(i) Issue orders under basic ordering agreements on Optional Form (OF) 347, Order for Supplies or

Services, or on any other appropriate contractual instrument;

(ii) Incorporate by reference the provisions of the basic ordering agreement;

(iii) If applicable, cite the authority under 6.302 in each order; and

(iv) Comply with 5.203 when synopsis is required by 5.201.

(3) The contracting officer shall neither make any final commitment nor authorize the contractor to

begin work on an order under a basic ordering agreement until prices have been established, unless

the order establishes a ceiling price limiting the Government’s obligation and either-

(i) The basic ordering agreement provides adequate procedures for timely pricing of the order early

in its performance period; or

(ii) The need for the supplies or services is compelling and unusually urgent (i.e., when the

Government would be seriously injured, financially or otherwise, if the requirement is not met

sooner than would be possible if prices were established before the work began). The contracting

officer shall proceed with pricing as soon as practical. In no event shall an entire order be priced
retroactively.