napolik

Take a look at this thread:

Earlierr you said You are OK if the contracting officer exercised the option SAF in anticipation of use of FY 19 annual funds for period 12 Oct 2018 - 11 Oct 2019.

A couple of questions: 1. What is the period of performance for the option? 2. Are you using annual funds?

Is not a subcontractor's profit a cost to the prime?

Please provide FAR cites and /or GAO decisions supporting your theory.

I assume the mod's SOW is cut and pasted from the option that was not exercised.

Via an automated procurement system.

Yes. But, if you fail to exercise an option, you cannot resurrect it without following one of the competitive procedures set forth in the four paragraphs in FAR 6.102(d) or without creating a J&A.

And if you fail to exercise an option for an A/E contract, how do you add the work to the contract? Same question as it applies to a GSA schedule.

Paragraph (d), Other competitive procedures, identifies 3 procedures in three sub-paragraphs - (d)(1) addresses selection of sources for architect-engineer contracts; (d)(2) addresses basic and applied research; and, (d)(3) addresses use of multiple award schedules. Can you issue without a J&A a contract mod for a lapsed option if the contract involves an A/E contract or a GSA schedule?

If you are adding to the contract via a mod the work described in the unexercised option, you will be thwarted if you don't do a J&A and if a firm protests your actions. But, PepeTheFrog may be able to dissuade the R&D competitors from protesting!

I agree with your observations on Ask A Professor. I answered the question raised by the Sig. CP, and I provided the reference as an aside because he cited Ask a Prof in his initial post and because it addressed a BAA. I believe the Professor did address the issue of using a bilateral mod to provide the support contained in the unexercised option: Quote I sympathize with your frustration with the slow funding process and the inability to award an option on time. Unfortunately, you can not award an option after the contract period of performance has expired. CLIN 001 has expired and CLIN 002 is no longer available because the Gov't could not exercise it without needed funding. Your references are at FAR 17.204 Contracts (b) The contract shall state the period within which the option may be exercised You did this with your CLINs/Section F and 52.217-9 "Option to Extend the Term of the Contract" According to this clause and fill-in, the Gov't had the capablity to exercise the option within 10 days of the end of CLIN 001. Unquote Quote Starting all over again with a source selection or a sole source justification is very resource intensive and of course it is likely that we will not get the same employees. Unquote What is your response to his question - "Is such a modification an abuse of the Agency's authority and outside the regulations?"?

Is the work described in the option you failed to exercise? Also, FYI, see this DAU Ask A Professor discussion of failure to exercise BAA option: https://www.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=28&cgiQuestionID=113891https://www.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=28&cgiQuestionID=113891

The BAA is covered by FAR Part 6: 6.102 -- Use of Competitive Procedures. The competitive procedures available for use in fulfilling the requirement for full and open competition are as follows: (a) Sealed bids. (b) Competitive proposals. (c) Combination of competitive procedures. (d) Other competitive procedures. (1) Selection of sources for architect-engineer contracts in accordance with the provisions of 40 U.S.C. 1102 et seq. is a competitive procedure (see Subpart 36.6 for procedures). (2) Competitive selection of basic and applied research and that part of development not related to the development of a specific system or hardware procurement is a competitive procedure if award results from -- (i) A broad agency announcement that is general in nature identifying areas of research interest, including criteria for selecting proposals, and soliciting the participation of all offerors capable of satisfying the Government’s needs; and (ii) A peer or scientific review. (3) Use of multiple award schedules issued under the procedures established by the Administrator of General Services consistent with the requirement of 41 U.S.C. 152(3)(A) for the multiple award schedule program of the General Services Administration is a competitive procedure. ______________________________________________________________________________________________________________________________________________ FAR Part 6 Competition requirements do not apply to contract modifications, including the exercise of priced options that were evaluated as part of the initial competition: FAR -- Part 6 Competition Requirements 6.000 -- Scope of Part. This part prescribes policies and procedures to promote full and open competition in the acquisition process and to provide for full and open competition, full and open competition after exclusion of sources, other than full and open competition, and advocates for competition. This part does not deal with the results of competition (e.g., adequate price competition), which are addressed in other parts (e.g., Part 15). 6.001 -- Applicability. This part applies to all acquisitions except -- (a) Contracts awarded using the simplified acquisition procedures of Part 13 (but see 13.501 for requirements pertaining to sole source acquisitions of commercial items under Subpart 13.5); (b) Contracts awarded using contracting procedures (other than those addressed in this part) that are expressly authorized by statute; (c) Contract modifications, including the exercise of priced options that were evaluated as part of the initial competition (see 17.207(f)), that are within the scope and under the terms of an existing contract; _________________________________________________________________________________________________________________________ Since the BAA is covered by FAR Part 6 and since the option was not exercised, you are not providing for Full and Open Competition if you create a mod to extend the period of performance. The principle set forth in Vern Edwards’ GAO case cite remains valid - Washington National Arena Limited Partnership, B-219136, OCT 22, 1985, and it applies to BAAs. Thus, you must comply with FAR Subpart 6.3 and must write a J&A.

What is the question?