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About Retreadfed

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  1. CS TJohn, failure to exercise an option is not a termination for convenience or otherwise. The contract simply ends. You would close-out the contract BPA in the same way you would close-out a contract or BPA that did not contain options.
  2. I still do not know what you mean by "the subcontract funded amount." Are you saying that the government has specified an amount of funds obligated on the prime contract that is to be used only for a particular contract? While that may happen, it is a rare occurrence in my experience. Also, prime contractors do not "fund" subcontracts in the way the government funds prime contracts because the fiscal statutes that apply to the government do not apply to prime contractors. Primes usually budget for subcontracts.
  3. A contractor's obligation is to comply with the WD incorporated in the contract. See, FAR 52.222-41. Therefore, this is something you need to make sure there is agreement with the contracting officer as to what is the appropriate WD.
  4. What would the unit price represent? Are potential offerors being provided an opportunity to view the areas to determine their condition in relationship to the standards? Will the agency and contractor agree on the condition of the area before submission of proposals?
  5. The changes in limitations on subcontracting are the result of amendments to the Small Business Act which required implementation by the SBA. The SBA finally implemented the statutory change in May 2016. Unfortunately, the current FAR provisions are based upon the old statute and SBA rules. However, the FAR Councils have opened a case to update the FAR to be consistent with the SBA rules.
  6. That clause implements 41.U.S.C. 4712. That statute does not require the FAR Councils to promulgate a clause. Instead, it requires the head of each individual agency to "ensure that contractors, subcontractors, and grantees of the agency inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce." It seems that this obligation on the part of the agency head exists regardless of whether there is a contract clause implementing the statute. Also, the statute seems to apply to any contract or grant, not just those awarded after the statute was passed. This seems like a matter of statutory interpretation that you should take up with agency lawyers.
  7. To add to what has been written already, the CDA imposes a six year statute of limitations on when a claim can be asserted. The FAR has filled a cap in the CDA by providing an explanation of when a claim accrues to start the six year period running. Thus, you have to look at the definition of when a claim accrues and see if you could assert a claim based on the facts of your situation and if so when you knew or should have known the facts that permit you to assert a claim. That will go a long way in answering your question.
  8. Boof, based on FAR 52.216-18, I think the oversight agency is off base. The DO is subject to the terms of the base contract, not unique terms applicable to each individual order.
  9. Don, the wording of the local clause is clear as to what it says. The contract does not contain an Availability of Funds clause and as Jamaal surmised, the agency has stated that it is worded the way it is because funds are generally not available to fund the option at the beginning of a fiscal year. Jamaal, in this case, the agency appears not to have thought about the impact an extension of the base period will have on the option periods. The agency's main concern is to spend the money obligated on the contract in the base period. It seems that the agency really believes that if it does not spend all of its appropriations, it will not get what it asks for in the future. If a new contract was issued in October 2016, FY 16 O&M funds could not be used to fund it.
  10. Vern, thank you for your reply. The CICA exception cited was 10 U.S.C. 2304(c)(6).
  11. And the flip side to Don's observation, what is the plan to deal with those who are afraid to ask? From my experience, that would be more of a problem than the nay sayers.
  12. Navy, thanks. Vern, hopefully this is a clearer timeline. Jan. 2016 T&M contract is awarded consisting of a base period of performance and four option periods of 12 months each. Contract is for severable services. Base period of performance to run from Jan. 2016 to Sep. 30, 2016. First option period is stated as running from October 1, 2016 to Sep. 30, 2017. Agency issues notice of intent to exercise first option in summer 2016 (at least 60 days prior to end of base performance period). Contract does not contain any FAR option clause but a local clause. Local clause contains a formula describing time limit on when option may be exercised. Application of the formula to the facts of the contract results in the option being exercised no later than Nov. 30, 2016. On Oct. 5, 2016 contractor receives mod extending base period of performance to Nov. 30, 2016 citing CICA exception to full and open competition as authority. The reason for the extension is that funds obligated for base period of performance remain unexpended and agency wants to expend those funds before adding more funding through exercise of option. Mod does not change period of performance of first option period (Oct. 1, 2016 to 30 Sep. 2017) or price of base period of performance or price of first option.
  13. I have just come across a situation that I have never encountered before and need a sanity check on my reaction. The government issued a T&M contract for severable services effective January 2016 that is funded with DoD O&M funds. The base period of performance was to run from January 2016 to 30 Sep. 2016. Option year 1 was to run from October 1, 2016 to Sep. 30, 2017. The contract does not contain any FAR option clauses, but does contain a home brewed option clause that essentially gives the government the right to exercise the option up to 60 days after the base period of performance has expired. Instead of exercising the option when the base period was expiring, because all the funds initially obligated on the contract had not been expended by Sep. 30, 2016, the government unilaterally extended the base period for 60 days to Nov. 30, 2016. The authority cited for the extension mod was CICA. Although the extension mod appears to have been issued after October 1, the effective date of the mod is January 2016. While I have several issues with the contract and extension mod, I have two major concerns. First, is the effect of the extension mod on the possible exercise of the option. The extension mod did not change the option period. Thus, if it is exercised, the option will be running concurrently with the base period. I don't see how that is possible. Am I missing something here? Also, I do not see how the option can be exercised in accordance with its terms if it does not begin on October 1. Second, is the extension of the base period of performance into a new fiscal year. Although there was no new obligation of funds, there was nothing in the contract that permitted the extension and the option was available to cover the severable services in FY 17. If the period of the base year had initially run to Nov. 30, there would be no problem. However, the way the extension was done gives me an uneasy feeling that something is just not right here. Am I over reacting on this?
  14. I don't think anyone can answer your question without knowing what the contractor's theory of recovery is and what costs are being claimed. Because this is a contract for commercial items, the cost principles from FAR Part 31 do not apply.