rios0311

Now that's helpful! I got the runaround today with the Department of Labor. I got nowhere. I'll try that tomorrow.

Thanks for the information. I learned something new today.

Thanks for the advice. Reaching out to DOL this morning.

It is a FFP contract.

I've incorporated into contracts revised DOL wage determinations when exercising an option. This has resulted in a slight increase to the hourly labor rates. However, I'm required to exercise an option (option 3) on a contract, but the contractor has provided a revised collective bargaining agreement (CBA) with new rates. Am I allowed (or required) to increase the new option's labor rates as a result of a collective bargaining agreement? To provide some background, there was no CBA when the agency awarded the contract. The contractor presented to the agency its first CBA about 1 1/2 years after the contract had been awarded (midway through option 1 of the contract). A revised CBA was used to revise the labor rates when the agency exercised option 2. I'll be exercising option 3 this month, but I'm not sure about the CBA. Are we required to honor it? FAR 22.1008-2 discusses CBAs in the context of predecessor and successor contractors, but we're not ready to compete the requirement yet. We still have two options left on it. The option price is worth close to $500k, and the CBA revision adds nearly $30k to that price (for the option year). Seems like a lot.

It becomes a problem when all the CLINs get out of synch when one or more (nonseverable) CLINs need to be extended, but the remaining CLINs continue as scheduled, including the exercise of their options. So I end up with a contract with several CLINs that are in their base POP, but I have other CLINs that are in their Option 1. If this happens enough times, I can have different CLINs, all within the same contract, but operating under 3 different periods of performance. If these have options, keeping track of them becomes an administrative burden. I didn't know one could structure a contract with multiple CLINs, each with its own period of performance and each with options.

I've seen a number of time-and-materials and labor-hour contracts that specified only an hourly rate for the options, but did not specify the estimated number of hours. I've always advised that without an estimate of hours, the option price cannot be determined and thus the option is unpriced; ergo, unexerciceable. I don't think the price can be reasonably determined without knowing how many hours of work the contractor is required to perform. Is this correct, or have I been giving bad advice?

Question 1: Is it allowable to have a contract with multiple CLINs that all have different POPs in effect? In other words, some CLINs might be in their base POP, while others might be in option 1 or 2? Some CLINs are for severable services, while others are for nonseverable services. Background: I inherited a GSA order for the purchase and integration of IT software, project management support, and training services. There are six CLINs; some for severable services and some for nonseverable services. Each CLIN has its own stated POP with a base period and 4 options. The geniuses that awarded the contract assumed that everything would go as planned and apparently did not predict that the POPs might eventually get out of sync. Further, they did not realize or did not know that they should not have split up a nonseverable service with options. Due to a stop-work order we issued some months ago, and due to the October government shutdown, the nonseverable services were not completed during the base POP. I agreed to extend the period of performance of the nonseverable CLINs and I was planning on realligning the POPs of all the other CLINs so they all match. However, some of the other activities (under different CLINs) need to begin as originally scheduled (during the original dates of option 1). Had I been the awarding CO, I would have awarded an IDIQ and placed the nonseverable services uder separate task orders and the severable services on a single task order. But since our agency uses no-year funds only, I would have simply awarded a contract with a single POP for the base and all options (no POP for each CLIN) and had all the activities take place according to a project plan milestone schedule. Since the core service is nonseverable (installation/integration), I would have extended the base POP until the installation/integration was completed, without affecting the performance of the severable tasks. Question 2: How can I fix my contract? In other words, can I extend by 2 months the base period of performance on CLINs 0001 and 0002 to allow the contractor to finish the nonseverable tasks, but exercise option 1 on CLINs 0003, 0004 and 0005 since those services are required now?

Thanks for the additional information Joel. It is very helpful.

Fantastic. Thank you!

Hi Bob7947, please correct the topic title to read: Can a Proposal Be Excluded Based Solely on Price? There is one "s" too many in "Proposal."

Someone please add the option to edit topic titles!

This question is not specific to any one method of contracting and applies to evaluations that use either LPTA or Tradeoffs as a basis for award. Can an offeror's proposal be excluded from consideration based solely on a price that is so high that the Government would not make an award to it? More specifically, can a proposal be excluded from consideration based solely on price, without having evaluated any other factor, such as technical or past performance if the Government is certain that it would not make an award at the offered price?

I should have volleyed my questions five days ago. Thanks Vern and Don.

Thanks for providing this information, Vern. As for my volley of questions, it is because one question usually leads to several others. I thought it might be more practical to include them all in the same post. Although I agree that my first question was very vague and unnecessary. And thanks to Don's reference to the Sovereign Acts Doctrine and the numerous references you provided regarding the subject, I have now learned something new.

Thanks Don, We issued the stop work orders because our CAO told us we had to. Had he not told us to, I probably would have issued them anyway because I thought that is what was required. This is one of those things that I learned from others and not from conducting my own research.

For the most part they can't because they would require access to the building and government oversight. But some are offsite and their contracts are fully funded, so they can.

We issued numerous stop work orders on FFP service contracts that require the contractor to perform work onsite. The stop work orders we issued require that contractors cease incurring costs related to the contract.The contracts provide "bodies" in support of specific functions within the agency. We issued stop work orders to these contracts because there are no government personnel to provide oversight for the contracted activities, and because there is no benefit derived from their services during the shutdown. I'm trying to understand how to settle up with our contractors to make them whole once the shutdown has ended and we've received our appropriation, but I don't want to be taken for a ride. How do we deal with stopped FFP contracts in this scenario? Should we expect the contractor to layoff the personnel provided by their contract or do they keep those persons in suspended animation, continue to pay them and then bill us for that time through a request for equitable adjustment? Or Do we simply "pay the man" for time they couldn't work because the contract is a FFP contract and also entertain their request for an equitable adjustment to the contract's schedule and/or (doubtfully) for the contractors' costs? Finally, what if the contract did not include 52.242-15 Stop Work Order? Is the contractor still bound by its terms under the Christian doctrine, or must the contractor submit a claim under 52.242-17 Government Delay of Work because in the absence of 52.242-15, the stop work order was not expressly or impliedly authorized by the contract? Which leads to yet another question, what if the contract included neither 52.242-15 or 52.242-17? I will recap the questions I asked in this topic: How do we deal with stopped FFP contracts in this scenario? Should we expect the contractor to layoff the personnel provided by their contract? Should we expect the contractor to keep their contractor employees in suspended animation, continue to pay them and then bill us for that time through a request for equitable adjustment? Do we simply "pay the man" for time they couldn't work because the contract is a FFP contract and also entertain their request for an equitable adjustment? Can we issue a stop work order if the contract did not include 52.242-15 Stop Work Order What if the contract included neither 52.242-15 or 52.242-17? Is there any way to edit the topic title?

FAR 52.217-9 includes two fill-ins. If you tailor the fill in appropriately, then the clause should allow you to do that. For example: ... The Government may extend the term of this contract by written notice to the Contractor within 30 days before the contract ends or within 30 days of funds becoming available for the contract. You're still required to provide timely preliminary notice to the contractor, but the language of the clause would now allow you to perform the actual extension up to 30 days after the contract's POP has passed (assuming you delayed exercising the option because funds were not available).

Vern, it is a 52.217-8 option for which we are adding time only. It is an extension of time for the same line item. And no; the option will not result in a contract that is more than five years long. However (and I write this with some trepidation), FAR 17.204(e) leads me to believe that exceeding 5 years (through the use of options) might be permissible on an IT contract, but I'll research that before making a definite conclusion. Thanks for your valuable time. This has helped me a lot!

Vern, thank you very much for the information you provided. I quoted a few items you discussed that I would like to comment on or inquire further about. The idea behind a multi-year contract is to allow an agency to obligate the government for the requirements of more than one program year even when it does not have funds for all the years. A multi-year service contract would have a period of performance of more than one year, with (1) performance in the second and further years contingent upon availability of funds and (2) cancellation terms. Before your response I understood that any contract for severable services with a POP that exceeds 12 months is a multiyear contract (buying more than one year's services without the use of options), regardless of whether or not they've been funded fully at time of award. The difference between the two being that a cancellation ceiling must be established if the entire amount of the contract is not funded at the time of award. However, you seem to suggest that only contracts for severable services with a POP that exceeds 12 months AND that are not funded fully at time of award are considered multiyear contracts. Is that what you intended to convey? Does your contract have a period of performance of more than one year, or does it have a one-year period of performance and extension options? I was only referring to contracts for severable services with periods of performance of more than one year, without the use of extension options. I'm clear on the distinction between multiyear and multiple year contracts. If I understand you correctly, no-year funds have been obligated for current contract performance, but you will not expend them all. Some will be excess ("residual"). You want to deobligate the excess funds and reobligate them on a contract modification exercising an extension option. Right? If so, then I say that you can use the excess funds to pay for the option period. There are two reasons for that conclusion: First, the funds are no-year and, if deobligated, would be available for reobligation. Second, there are no bona fide needs issues with no-year funds. Since the bona fide needs rule does not apply to no-year funds, the 12 month rule in 41 USC 3902 does not apply to contracts for severable services funded with no-year appropriations. Thus, it should be clear that you can deoblgate the funds and reobligate them to fund the option period. You understood me correctly. However, am I required to deobligate the residual (no-year) funds prior to using them for the extension, or can I just leave them on the contract and execute a modification without additional funds (assuming the existing funds will cover the cost of my continuing need)? Again, thanks for the lesson!

ji20874, thank you for your feedback and for the references. I'll look up USC 3902 and 3903. Regarding the extension, I was referring to a six-month extension. I think our budget people don't understand the principles and for that reason prefer treating our no-year appropriations as annual appropriations. It's really frustrating and makes our job more difficult.

Vern, thanks for the references. Let me clarify that now I'm working for a small, independent agency that only receives no-year appropriations.The section of the Redbook to which you referred me for question 1 answered my question. A contract for severable services that buys more than one year's services (without the use of options) is a multiyear contract. A cancellation ceiling is required only if the full amount of the contract is not obligated at time of award. The section of the Redbook to which you referred me to for question 3 states clearly what I already know: "A no-year appropriation is available for obligation without fiscal year limitation." I've also seen language that states that the bona fide needs rule does not apply to no-year funds and other similar language. However, I'm having difficulty convincing our budget people that my interpretation is correct. That's why I raised the question in the first place. So I was hoping to elicit a response, such as "yes, you are correct", or "no, what the heck is wrong with you". In short, something I could take back to them. However, the section of the Redbook to which you referred me for question 2 did not provide me with a clear answer to my question. I have contracts funded with no-year funds. Sometimes as the end of a 12-month POP nears there are unused funds remaining on the contract and a need for the services to continue (not simply for the sake of using the funds). I use the option to extend services clause to extend the contract for up to 6 months. What I'd like to know is whether or not I can use the residual funds to fund the extension. I believe this is permissible with no-year funds, but I have not been able to confirm whether or not my understanding is correct. I've referred to and read this section of the Redbook quite often, but other than this forum, I don't have anywhere to verify whether or not my understanding of what I've read is correct.

Please, Vern; be frank with me! In all seriousness, that's what I get for posting after a 12 hour work day. I was trying to get all the information in before running down to catch the Metro home. Thanks for the feedback; I'll be more mindful next time. Let me give it another shot and I’ll leave out all the superfluous information. Question 1: Does the following action result in a multiyear contract and does it require establishing a cancellation ceiling? Awarding a contract for severable services with a period of performance that exceeds 12 months, and funding it with no-year funds. Question 2: Is it permissible to use an unliquidated (residual) no-year obligation to fund a six-month extension on a contract for severable services when doing so will cause the total period of performance of the contract to exceed 12 months? Question 3: Is it permissible to exercise an option during the current fiscal year on which performance beings in the following fiscal year, by funding it with a current no-year appropriation?

Did I miss something? Was it that bad?