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Guardian

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  1. Excellent response, Joel and a great help! I started with a fundamental, seemingly elementary question, in hopes of getting answers to more specific questions. Perhaps that first question wasn't worded as it should have been, but I asked several other good questions along the way that were flat out ignored. I am not sure why. I will assume the blame in that I tried to pack too much into one thread. I too am retiring and going out to enjoy this nice weather.
  2. Joel, How would I exercise all ten CLINs if I only have a funding commitment for nine (Anti-deficiency Act violation?) and no authority to incrementally fund? Sounds like you prefer exercising nine out of ten CLINs per 52.217-9 over a bilateral mod because of potential scope issues. How was your sailing trip by the way?
  3. If a reasonable, prudent person considers it out of scope .
  4. Base on the definition of an option under FAR 2.101 that Jamaal so appropriately drew our attention to, I would say no-- "'Option'" means a unilateral right [emphasis added] in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract, or may elect to extend the term of the contract. if we are now seeking the contractor's signature, I would contend it's no longer an "option" under the FAR's definition. If you go back and re-read what I wrote, you will find that I am not that certain. I am not sure why are saying this. I have been consistent throughout this thread and simply never said that. Guardian said: "If I had a definite unwavering answer, I would not have brought it to WIFCon." The whole point of me starting this thread was to get answers, not promote any one assertion. I think I, as well as others, including yourself, have insinuated that this issue might present more than one solution, with no single one necessarily being the unquestionably right way to proceed. Yes. No, as I stated to Retread above, by issuing the mod bilaterally, I am no longer exercising an option, which per se is a unilateral action. Why would you have to delete the unexercised CLIN? It can remain in the contract. By the contract's very terms, the Government never beared any obligation to exercise it. If a CO wants to delete it perhaps because its existence somehow screws up its local accounting system, then sure, go ahead and delete it. Yes, safe. If the contractor signs off on it, then there is no question of an impending dispute. Sure, in a sense we are relinquishing our unilateral right to exercise that one option. However, we are not thereby removing the clause 52.217-9 and our ability to exercise subsequent options under the unilateral authority provided for by that clause. What is the agency getting in return? How about peace of mind, knowing that a dispute over its not having exercised one of the CLINs isn't waiting around the corner? What else would you want as a CO or do you think the Government might deserve? What authority, you ask, do I have to "give away something that already belongs to the Government"? Well, let's see--according to several of my attorney friends who I meet with weekly as part of my professional group, I have quite a bit of discretion to do this among other things under my certificate of appointment. COs often have more than one way to proceed with a particular contract action.
  5. The contract modification extending the term of the contract, thereby obligating funds for nine of the ten CLINs associated with the upcoming one-year performance period.
  6. I agree that Joel gave an excellent answer. Every court case involves different circumstances, whether they differ just a little or a lot. My point was this--that I have not been able to find one single case that addresses an agency trying to exclude one or more CLINs that are associated with a particular "option period," i.e., period of performance. Do I think I might locate a case with the exact same circumstances as mine? Unlikely. Might I find a case that poses the larger question I have asked? Maybe. The contract does not expressly state that this cannot be done. The services have otherwise been consistent from year to year, for two consecutive years. Not exercising this one CLIN would not scale the services back that much by any measure. What else would you like to know? As a CO, I think the safest bet is to have it signed by both parties and forego the authority of 52.217-9. Might I be able to do it under the Option to Extend the Term of the Contract clause? Sure. Might the contractor dispute that decision? Sure, if they see fit in doing so and feel they were unfairly treated under the perceived contract terms. If I had a definite unwavering answer, I would not have brought it to WIFCon. I don't bring easy questions here. Do you not think I have attorneys, as do you? Do you not think I have addressed this with them? Did you not consider that I have perhaps gotten different responses? I do not know what a reasonable, prudent person might think, but I have some idea what I think :-). I earnestly appreciate your advice, as well as Joel's and that of everybody else. I think we can all agree that not everyone has the same opinion here, is leaning in the same direction, and yes you are totally correct, I have not provided you my contract to read.
  7. Ahh, a naysayer rears his head from the sea. No one has been able to produce a case that provides an answer to this "beginner's question" thus far. I have come across several cases, but none specifically addressing the exclusion of a CLIN. Enjoy your adventure, Joel!
  8. Yes, my convoluted arrangement of questions was purposeful and I for one think it led to an excellent discussion. Yes, there was a method to the madness. Maybe its for the best that others first assume I'm a newbie. Thanks for being patient with me. In response to Guardian's statement, "The contract never expressly states that, if exercised, they would necessarily be exercised together. " Thanks jwomack, this too is what my research shows, that is, contracting officers have a certain amount of discretion in exercising options. In response to Guardian's question and statement, respectively, "[D]o I have the unilateral authority under 52.217-9 to exercise (unilaterally) nine of those ten CLINS, each of which is marked "option period two," along with additional descriptions? The contract never expressly states that, if exercised, they would necessarily be exercised together." Thanks, Jamaal. This is really what I was looking for. I tend to agree. If you come across any GAO or legal cases that support this conclusion, it would be helpful if you could post the citations. I appreciate everyone's contributions to this discussion and their help.
  9. Jamaal, Did you read through this entire thread? Did you read my last question as spelled out in the scenario I described? I cited what I believe to be the relevant paragraphs under 17.2 for discussion. 17.208(g) is the prescription. Ok. How does the definition under 2.101 answer the question I asked above? How is a beginner going to answer this question, when I can't get an acceptable answer from a qualified contracting officer? Forgive me for assuming, but I don't think you have a ready answer.
  10. That's helpful, but I don't know why you are bringing up -6 through -8, when the very title of my post is "...52.217-9." I agree with you that there is a difference between an "option" and an "option period" and many contracting professionals wrongly use the term OP to refer to an option. Whereas 52.217-9 doesn't use the term OP, the period or "term" (and it's extension) is the purpose of the clause, i.e., Option to Extend the Term of the Contract. That said, I accept your terminology and will discard mine except inasmuch as I need it to reference how the CLIN descriptions were worded. I asked several questions within this post, but the first one was "what is an option per FAR 52.217-9"? I have read -9 several times over; it describes the conditions which the Government must meet to exercise an option, but does not say what an option is. So then perhaps the answer to my question is, "52.217-9 does not define what an option is; the answer to that question must be sought outside the clause, but within the contract." Here's a scenario that should clarify my question -- I inherited a contract that has ten line items (CLINs), each for a different set of services at a fixed quantity and fixed rate, in other words, FFP. My program office does not have funding (a commitment) for one of those ten CLINS. We sent a preliminary notice of intent to the contractor per 52.217-9, indicating our intent but not guarantee to exercise "option period two." My question is this, do I have the unilateral authority under 52.217-9 to exercise (unilaterally) nine of those ten CLINS, each of which is marked "option period two," along with additional descriptions? The contract never expressly states that, if exercised, they would necessarily be exercised together. I could not find any GAO cases that addresses this exact question.
  11. I wasn't asking for anyone to go out of their way to do research on this. If they elect to, that is their decision. Sometimes I learn the most in helping others. There are people on this forum that have a firm command of the administrative and case law. If someone has a case I could look at, it might help me moving forward. I spent a couple hours looking through cases the other evening, but couldn't find anything directly applicable.
  12. I think we're getting warmer. What about the paragraph between those two, (f)-- (f) Contracts may express options for increased quantities of supplies or services in terms of -- (1) Percentage of specific line items, (2) Increase in specific line items; or (3) Additional numbered line items identified as the option. What happens if we don't have a bona fide need or adequate funding FOR ALL of the line items labeled "Option" within a given POP? And how about what 17.207(f) says? -- (f) Before exercising an option, the contracting officer shall make a written determination for the contract file that exercise is in accordance with the terms of the option, the requirements of this section, and Part 6. To satisfy requirements of Part 6 regarding full and open competition, the option must have been evaluated as part of the initial competition and be exercisable at an amount specified in or reasonably determinable from the terms of the basic contract, e.g. -- (1) A specific dollar amount; (2) An amount to be determined by applying provisions (or a formula) provided in the basic contract, but not including renegotiation of the price for work in a fixed-price type contract; (3) In the case of a cost-type contract, if -- (4) A specific price that is subject to an economic price adjustment provision; or (5) A specific price that is subject to change as the result of changes to prevailing labor rates provided by the Secretary of Labor. (i) The option contains a fixed or maximum fee; or (ii) The fixed or maximum fee amount is determinable by applying a formula contained in the basic contract (but see 16.102(c)); May we concentrate on the text I've singled out in bold print? -- [T]he option must...be exercisable at an amount specified in or reasonably determined from the terms of the basic contract, [for example] -- [a]n amount to be determined by applying provisions (or a formula) provided in the basic contract...." What do you think that means exactly, aside from the obvious, e.g., shall not change unit prices? GAO, legal precedent, anything to support a thought; how about just a thought? Hasn't the GAO opened the door to changing OP POPs when it decided 52.217-8 could be used between OPs exercised pursuant to 52.217-9. How much more flexibility might the CO have?
  13. Allow me to rephrase. What is [emphasis added] an option period under 52.217-9? You did not answer my entire question. Please read the second, conditional, phrase-- What constitutes an option period under the authority of FAR 52.217-9? Anyone? Bueller?
  14. I will be happy to share my research with you. However, so as to avoid directing or influencing your answer, I would like to know what you, as well as others on the forum, think. Unless you have a specific question that might suggest an answer, I would like to avoid general questions as responses to my question. I am not sure we will get very far with that. The question seems simple enough, does it not?
  15. What constitutes an option period under the authority of FAR 52.217-9? Relevant GAO and legal precedent would be appreciated.
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