ji20874

Rather than looking for a citation that would expressly allow for the proposed modification, it might be better to look for a prohibition. If there is no prohibition, and it makes sound business sense, it should been seen as permissible, right? See FAR 1.102-4(e). Are we talking about the parties agreeing to modify a contract after acceptance has occurred? There is no prohibition. Somehow, and for some reason, it seems the 2015 contract is still open and has not been closed. If your agency will close that contract, you might solve the problem. Or, are we talking about circumventing competition requirements for new work? That’s an entirely different matter. If the new work really is new work (that is, is not within the scope of the 2015 contract or the competition for that contract), the proposed modification will have to comply with any applicable competition requirements.

------------------------------------------------------- ITEM SUPPLY/SERVICE QTY UNIT UNIT PRICE AMOUNT ------------------------------------------------------- 001 Data Package 2019 1 EA $10,000 $10,000 . Delivery: Jan 2020 OPTION ITEMS- 101 Data Package 2020 1 EA $10,000 $10,000 . Delivery: Jan 2021 201 Data Package 2021 1 EA $10,000 $10,000 . Delivery: Jan 2022 301 Data Package 2022 1 EA $10,000 $10,000 . Delivery: Jan 2023 401 Data Package 2023 1 EA $10,000 $10,000 . Delivery: Jan 2024 FAR 52.217-7, Option for Increased Quantity—Separately Priced Line Item . fill-in: JAN-OCT of the data package year

Bernicia, We need to be careful not to mix different issues. Scope of the competition and skirting competition are real concerns, whether it was a 2015 order or a 2019 order -- I thought the question was about doing a modification after the period of performance has ended. I am unaware of any prohibition on contract modifications after the period of performance has ended -- I've even done some myself.

Sometimes, it is best to leave the dead in their graves (Happy Halloween!) If anyone had objections to a contract modification in 2015, I hope he or she would have raised the objection then. Sorta like a wedding, “Speak now, or forever hold your peace.” I recommend letting the sleeping dog lie. Rather than looking for a citation that would expressly allow for that modification, it might be better to look for a prohibition. If there was no prohibition, and it made sound business sense at the time, it should been seen as permissible, right? See FAR 1.102-4(e).

A contract does not die (or turn into a pumpkin) on the delivery date or period of performance end date. If the contractor did not deliver by the due date, then the contract is still alive, and will remain alive for as long as either party still has obligations under it. BTW, are you wanting to (1) change the work; or (2) add entirely new work? p.s. I used words like die and alive and pumpkin because tomorrow is Halloween.

Even outside of DoD and the cited DoDI, and considering only FAR 7.503(c)(20), contractors may provide background information to assist governmental personnel with these activities. But somewhere, there is a line between providing background information and drafting responses.

Are you talking about FAR 7.503(c)(20)?

I am supposing the agency did nothing wrong -- no ADA violation — under a CR, it is permissible to fully fund a twelve-month contract with annual appropriations even though the period for making obligations ends on Nov. 21. Anyone errs who suggests that a contract cannot be funded beyond the CR end date. But, the agency will do what the agency will do. (1) The agency could unilaterally do a partial termination for convenience for everything after Nov. 21. (2) The agency could try to re-negotiate the contract for a base period ending on Nov. 21 and then ten one-month options after that (or something similar). This would require a bilateral agreement. This new arrangement will introduce notable risks and other real costs (so the contractor may reasonably want the total price to go up), and it would make sense that the new base period price will have to cover 100% of the fixed or non-recurring costs (so the contractor may reasonably want to front-load the price). For example, if the contract as awarded looks like this-- 001 SERVICES 12 MO $ 10,000 $120,000 . OCT-SEP TOTAL: $120,000 the contract as re-negotiated might look like this-- 001 SERVICES 2 MO $ 57,500 $115,000 . OCT-NOV . 101 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . DEC . 102 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . JAN . 103 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . FEB . 104 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . MAR . 105 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . APR . 106 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . MAY . 107 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . JUN . 108 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . JUL . 109 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . AUG . 110 SERVICES/OPTION 1 MO $ 1,000 $ 1,000 . SEP TOTAL $125,000 (3) The agency could try to re-negotiate the contract to allow for incremental funding by adding something like the DoD's LOGO clause. This would require a bilateral agreement. Again, this new arrangement would introduce notable risks and other real costs, so one would reasonably expect the contract price to go up. (4) It is entirely possible that "the customer" simply doesn't understand the rules for funding contracts during a CR, and is acting in good faith but in ignorance. A meeting as Carl suggested with experienced players from the contracting, comptroller, and other offices might be helpful and might avoid all this messiness by simply leaving the already-awarded contract alone. After all, under a CR, it is permissible to fully fund a twelve-month contract with annual appropriations even though the period for making obligations ends on Nov. 21. Anyone errs who suggests that a contract cannot be funded beyond the CR end date.

It is theoretically possible, in some cases. Some agencies are authorized to sell goods or services under certain circumstances. These authorities are statute dependent, agency particular, and purpose driven. You must ask the agency directly if it is willing to enter into a business relationship. A complication: When a prime contractor relies on a Government agency as a subcontractor supplier of goods or services, it is contracting with the sovereign. The prime contractor may be unable to force or enforce its will on the Government agency, and will not be able to enforce its subcontract in state court.

Jamaal points to the right place. Yes, read FAR 5.301. Then, ask yourself if you have ever seen anything (a regulation or policy) that deviates from that. If so, please share it here. A primer: FAR subpart 5.2 covers pre-solicitation synopses. Subpart 5.3 covers post-award synopses. Anyone who reads the text will know this, but many among us don’t read the text.

Oh, no. When the judge at the board of contract appeals asks why you refused to make payment on work that had been performed under a task order, you will have to give an answer in the first person: "I refused to make payment because _____." Hint: You will not be allowed to say "...because my higher-ups said so." Your higher-ups and your agency attorneys will not allow you to submit such an answer. As the contracting officer, it is your decision to refuse payment -- you need to know why you made you decision.

Govie, If this answer is the best you can do, then no one here can help you. We cannot have an intelligent conversation unless (1) you understand the story, and (2) you can relate the story to us. It seems you are unsuccessful in both. Advice: Please do not answer questions or add information inside a quotation box -- it is better to show your own text this way, below a quotation box.

Why did the Government refuse to pay the invoice to Contractor A for the work Contractor A did under the task order?

The first step on the correct path forward is to accurately relate the facts. Here are some questions to help... 1. The Government awarded an indefinite-delivery indefinite-quantity (IDIQ) contract to Contractor A which provided for work at five government facilities and included the clause at FAR 52.216-22, Indefinite Quantity. . YES NO Remarks: _____ 2. The Government also issued a task order to Contractor A. . YES NO Remarks: _____ 3. The task order purchased the minimum quantity for work at one of the five government facilities. . YES NO Remarks: _____ 4. Contractor A successfully performed the work for the task order. . YES NO Remarks: _____ 5. Contractor A invoiced for the work performed on the task order. . YES NO Remarks: _____ 6. The Government paid Contractor A for the work performed on the task order. . YES NO Remarks: _____ 7. No other task orders were issued. . YES NO Remarks: _____ 8. Contractor A also invoiced for the work for which it was never issued a task order (the work which was performed by Contractor B under a different contract). . YES NO Remarks: _____

Govie, I read your posting twice, and I cannot understand it. Can you try again?

It seems to me that para. (b) of the contract clause at FAR 52.216-18, Ordering, clearly allows for orders with terms and conditions in addition to those in the parent contract.

A contractor may reject an order if it does not conform to the parent contract. A contractor may accept an order that contains additional clauses. If a fair opportunity notice adds clauses, a contractor can address the impact of those clauses in its offer, if it chooses to submit one.

File a protest under FAR 16.505(a)(10)(I)(A). That is the proper recourse if a prospective offeror believes these things are happening and are unfair. It is a simple fact that sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts.

Generally, if a clause is in the parent indefinite-delivery contract, it applies to all orders against that contract — the clause need not be repeated in the order. Sometimes, fair opportunity notices for orders against multiple-award IDIQ contracts will include clauses that are not included in the parent IDIQ contracts. This is seen as okay because there is a competition for the order, and contract holders can submit offers based on the new clauses.

Please read FAR 42.1204 for the answer to your question.

Was the sole purpose of the amendment to change the set-aside category? Or, did the amendment also do other things? For example, did the amendment change the work? If the amendment changed the work, that might provide cover for also changing the set-aside category.

Desparado, Are you in pre-award negotiations? Or post-award? FP? CR? T&M? Commercial or non-commercial?

I agree. As I recall, the GAO has told us that the FAR doesn't apply to no-cost contracts, but CICA might. Since the FAR doesn't apply, you need not use FAR-prescribed forms or clauses, and you can use any numbering scheme you want to. The contract can be signed in accordance with agency regulations, even by a non-SF1402 contracting officer.

By all means, if the protester (or anyone else) knows a better way to evaluate risk for a lunar mission, they should share their thoughts with NASA -- it's their duty as patriotic citizens.

Be careful -- first, ascertain how easily replaceable your firm is as a subcontractor -- you will have less or more negotiation leverage depending on how easily you can be replaced.