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Found 12 results

  1. I currently have a request to extend what was initially a 6-month fixed-price delivery contract using FAR 52.217-9, with the reason being the host country was not yet ready for receiving the items (the contractor has performed satisfactorily and had the items ready to ship when the contract required). Because the exact amount of time the contractor will have to hold onto the items is not known, I was going to add a funded cost-reimbursement CLIN, de-obligating the amount not used once the items are delivered. Another CS informed me the FAR does not allow adding CLINs to an extension, but could not find the citation. I also looked throughout the FAR, Wifcon, and asked other CSs and have not found anything stating this is not allowed. The effort to be expended is the exact same as under the original fixed-price contract, so there is no change in scope, just using cost-reimbursement. Before completing the modification, I want to ensure the addition of the CR CLINs is allowable.
  2. In light of a recent protest (WIFCON link http://www.wifcon.com/cgen/4114813.pdf, docket B-411481.3 dated 6 January 2016) regarding a task order issued off a Federal Supply Schedule, I've heard chatter from legal advisors that the clause at FAR 52.216-22 doesn't set the effective date of the IDIQ. Consequently, they argue that clause cannot be a mechanism by which a task order featuring option years can be performed for years beyond the end of the ordering period. This interpretation seems entirely contradictory to the specific language featured in FAR 52.216-22. The clause in the IDIQ in question cuts paragraph (d) short, omitting the date fill-in. GSA's ordering guide places the following restriction on task orders which use options (emphasis supplied by the GAO) Interestingly, GSA has revised their ordering guides within the last two weeks to put an end to the issue this portion of the protest encountered: https://interact.gsa.gov/document/important-update-new-mas-refresh-mass-modification-changes-february-2016-streamline Researching WIFCon, I've found relevant discussions. Here: http://www.wifcon.com/discussion/index.php?/topic/1665-task-orders-that-extend-beyond-base-contract-pop/#comment-14003 Vern's invaluable blog post at http://www.wifcon.com/discussion/index.php?/blogs/entry/644-those-pesky-idiq-contracts-again/ provided some excellent reading, but nothing that corresponds with what I am hearing from legal counsel. Another discussion seems to predate the fateful action which triggered the protest in question: http://www.wifcon.com/discussion/index.php?/topic/1768-gsa-to-with-options-beyond-k-period/ Based on the buzzings, it seems as though legal counsel is applying the restrictions imposed by GSA onto DOD contracting officers. Legal counsel has argued that: 1. The effective period may end prior to the ordering period; 2. The date of FAR 52.216-22(d) is NOT relevant to the IDIQ's effective period; 3. The contract's effective date is the same as the IDIQ's ordering period 4. The date if FAR 52.216-22(d) is only relevant to the performance period for delivery under a Task Order and thus cannot be construed to include options under that performance; 5. Inclusion of the date in FAR 52.216-22(d) would not have changed GAO's analysis of the protest in question; and 6. Task orders are not stand alone contracts and once an IDIQ has expired (rendering the contract "no longer effective), the delivery under a Task Order is irrelevant. Summarily, legal counsel is strongly criticizing the idea of setting an IDIQ's "effective date" by way of the fill-in text in FAR 52.216-22. In fact, I am lead to expect this "ruling" by the various legal offices will impact DOD contracts significantly, requiring contracting officers to come up with a variety of complex "work-arounds". Is there something I never learned or never understood with regards how FAR 52.216-22 works? EDIT: Made a clarification.
  3. Is a Determination and Findings (D&F) report required to exercise an option for a task order under a GSA IDIQ contract under the simplified acquisition threshold ($150,000)?
  4. What are everyone's thoughts on the below hypothetical scenario. I have a real life scenario that would benefit from the answering of the below questions. I ask these questions because I am perplexed because I think the FAR does not really address the below situation/scenario. HYPOTHETICAL SCENARIO: I have a contract set up as follows: (1) CLIN 00001 - Base Year (12 months) - Janitorial Services (2) CLIN 00002 - Optional Vacuuming Task (task can be ordered at any time during the first four months of the Base Year Period of Performance) (3) CLIN 00003 - Optional Cleaning Task (Wash and Rinse all Trash Cans) (task can be ordered at any time during the first four months of the Base Year Period of Performance) After CLIN 0001 is exercised and I have a year of janitorial services, under what clause authority SHOULD the contract have included to properly exercise CLINs 00002 and 00003? As everyone knows, the FAR only has two Option Clauses for extending service contracts, but which clause(s) should be used to order an optional task for a service that does not extend the period of performance of the entire contract? Can I use 52.217-7 Option for Increased Quantity--Separately Priced Line Item for these option CLINs, even though the contract is a service contract. What would be the implications for the inclusion? Should I have my policy office develop an Agency contract clause that addresses the nature of the above scenario? Thanks for all of the help in advance! For reference, a similar scenario was posted on Ask the Professor: https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=113293%C2'>
  5. I'm working on preparing a multiple-award IDIQ for FFP commercial supplies, and there has been some discussion in my office about multi-year vs. multiple year and the inclusion of options for ordering periods. Each multiple-award IDIQ is intended to have a single five-year ordering period without options. Each delivery order would be funded using single-year appropriations. Each IDIQ would also have a minimum obligation that we reasonably expect will be fulfilled almost immediately after award. However, these IDIQ's raise two very important questions: 1. Would the IDIQ's be considered multiyear or multiple-year? 2. If they are multiple-year, are options required? Here's a summary of our discussion, and the general consensus we've reached. Any other insight is welcomed, regardless of whether it's conflicting or supporting. Multiyear vs. Multiple-year. Based on the definition of multiyear in FAR, a multiyear contract is for the purchase of supplies for more than one year. Further, "The key distinguishing difference between multi-year contracts and multiple year contracts is that multi-year contracts, defined in the statutes cited at 17.101, buy more than 1 year’s requirement (of a product or service) without establishing and having to exercise an option for each program year after the first." Under FAR 17.104(a), "Multi-year contracting is a special contracting method to acquire known requirements in quantities and total cost not over planned requirements for up to 5 years unless otherwise authorized by statute, even though the total funds ultimately to be obligated may not be available at the time of contract award. " Our discussion leads us to believe the IDIQ contracts we're preparing are not multiyear. First, they're IDIQs, and by virtue of an IDIQ, the quantity is unknown, and fails part of the criteria at FAR 17.104(a). However, the use of a minimum obligation could encroach on the multiyear definition. If we specified the minimum obligation were to be met sometime throughout the contract term, and delivery orders were funded using single year appropriations, we'd essentially be committed to spending money in future years that we don't have yet. An availability of funds clause could handle that situation, but it seems if we specified the minimum obligation would be met before the fiscal year end after contract award, we'd very clearly be out of multiyear territory. Options in a Multiple-Year Contract Our second topic of debate is the inclusion of options in a multiple-year contract. Our logic follows that if a contract exceeds one year in duration, and is not a multiyear contract, then it must be a multiple-year contract. Some of us argue against the necessity of options in a multiple-year contract, but others insist they are required. However, I cannot find any requirement in the FAR to affirmatively support either case. We all understand that anything is permitted unless it's prohibited in the FAR, but the idea of a multiple-year contract without options makes some people uncomfortable. We've reviewed FAR 17.202( (2), "Inclusion of an option is normally not in the Government’s interest when, in the judgment of the contracting officer -- An indefinite quantity or requirements contract would be more appropriate than a contract with options.", and this would seem to be a smoking gun to resolve this question. However, others have argued this statement demonstrates some other intent, such as an IDIQ should be multiyear (which we've already argued amongst ourselves that an IDIQ is not). My sentiment is that although options may present some advantages and disadvantages, they are not explicitly required in a multiple-year contract. Can anyone back me up? To summarize my questions: 1. Is our logic correct in classifying this IDIQ as a multiple-year contract? 2. Is there anything out there that requires the use of options to extend the ordering period of a multiple-year IDIQ? Thanks in advance to everyone who offers us some meaningful insight.
  6. First Question: I've been a little confused for some time about what consitutes a multiyear contract. In general terms, I understand that buying more than one year's requirements without the use of options is considered multiyear contracting. However, how does that apply to multiple-year appropriations or no-year funds? In other words, if I award a contract for severable services and fund it with no-year funds or a multiple-year appropriation (such as two-year funds) with an 18 month period of performance (or even a 24-month POP), does this meet the definition of a multiyear contract and does it require establishing a cancellation ceiling? I know that the example contract I just described, if awarded with an annual appropriation, would meet the definition of a multiyear contract and thus be subject to the required approvals and the requirement for a cancellation ceiling. But does this apply to contracts funded with no-year appropriations or multiple-year appropriations? Keep in mind that I'm only discussing contracts for severable services. I ask this question because I've encountered conflicting information. I distincltly recall reading (either in GAO Redbook or the FAR) that an agency can have authority to enter into multiyear contracts by authority granted to it (or perhaps agency policy?) or it can have multiyear contracting authority by the type of appropriation it receives (multiple-year or no-year). Futher, if using the authority provided by the type of appropriation, the agency must obtain the same approvals required by multiyear contracting on the basis of authority granted to the agency. Second question: There is a statutory exception allowing contracts funded with annual appropriations to cross fiscal years, provided that the total period of performance does not exceed 12 months. This limits our ability to use annual funds remaining on contracts to extend those contracts using the the option to extend services clause, when doing so would result in a total period of performance that exceeds the 12-month statutory limit. But does this restriction apply to contracts funded with no-year funds or multiple-year appropriations? In other words, if I awarded a contract with a one-year period of performance, and funded it with no-year funds or a multiple-year appropriation, assuming that at the end of month 12 I have excess funds on the contract, can I exercise the option to extend services clause and fund the extension with the unused funds? Or do I need to de-obligate the funds and reobligate them for the extension? I'm not inquiring about scope issues here. I'm interested only in understanding the correct method of using these funds without consideration of scope issues for the moment. Third Question: Can I exercise an option in August (FY13) that begins next year (October FY14) using this year's (FY13) no-year appropriation? All the research that I've done states that the Bona Fide Needs rule does not apply to no-year funds, so the timing of the obligation does not matter. But I'm getting a lot of push-back on my interpretation from individuals who are in positions to know this better than I do. Have I misinterpreted the Redbook and the numerous decisions I've read? If this is an appropriate use of no-year funds, can anyone provide a link or a citation to a decision or text that would support taking this action?
  7. Apologies in advance if this has already been answered, but what is the appropriate method for stating a contract's ceiling price on a contract with multiple optional periods of performance? Should one state the ceiling price for the entire contract, inclusive of options, or state the ceiling price for the current period of performance? I've done it different ways, but I'd like to know if there is a correct way. I usually state a ceiling price and a "total funded amount" when I fund the contract incrementally. When I do this, I include language similar to: "Notwithstanding the contract's stated ceiling price, the Government's liability to the contractor is limited to $XXX,XXXX.XX, the total amount funded on the contract. The contractor shall not perform work under this contract that will cause it to exceed this amount, except at its own risk." When I have options I state the ceiling price as: "The Ceiling Price for this period of performance is $XXX,XXX.XX." If the contract is incrementally funded, I'll add "Total Funded Amount" language similar to the one above. But I always wonder if I should be stating the Ceiling Price based on the estimated value of the entire contract, inclusive of options.
  8. I have an IDIQ contract to supply contract personnel to perform Quality Assurance Testing. The IDIQ is a 5 year contract with an 8a firm and the 5 years will end Sept 2016. I currently have a task order in place that was issued for 2 years and ends Sept 2013. I simply need to issue another task order (nearly identical to the first) and wish to do it for the remaining 3 years of the IDIQ contract. Here's the catch...the PM has informed me we do not have sufficient funds for the entire 3 years, but do have enough for one year. According to the Blogs I've read along with FAR 702 there really are no restrictions to writing a task order with options. I would like the task order to have a base year to cover FY14, one option for an additional 12 months to cover FY15, and one more option to cover FY16 bringing me to the end of the IDIQ contract. Keep in mind, the task order will end on the last day of the IDIQ contract. Can someone provide me with some justification or a section in the FAR I can point to for our contracting department? Thanks in advance.
  9. I recently transferred from a large agency, to a small, independent agency. I've encountered several instances of contracts structured with optional periods of performance, but the options were not exercised on time and now the contracts are "dead". A lot of effort went into awarding these contracts, even if some of them were relatively small. I've explained to the program offices that the contract has ended and since none of the terms and conditions of the contract are in effect, there is no provision or authority for me to exercise an option or extend the contract. So the result is that although a contract term of up to 5 yeas was contemplated, the contract is lost after one year of performance because someone wasn't paying attention (contractor, COR, contract specialist, CO, etc.). I understand that the contract is expired, but is there anything that I can do short of recompeting the requirement? Let's assume that these are not 8(a) contractors and the services are not so unique that they couldn't be provided by any other contractor. Is there any legitimate way of extending the contract or issuing a new contract to the contractor without having to compete it? Would the original contemplation of time (5 years) be sufficient to justify a direct award?
  10. My office primarily issues FFP service contracts and CTOs for environmental studies, plans, designs, remediation and associated services. Because environmental remediation frequently results in situations where greater contamination is discovered after field work begins, our CTOs have often included Options for increased quantities of services such as excavation that read "Option for addl excavation at a unit price of $54 per cubic foot up to 5000 cubic feet" or "Option for up to 3 additional project meetings at a unit price of $500 per meeting." Our office has recently come under new management and at a recent staff meeting, the new director informed us that these types of options were not appropriate in FFP contracts since they didn't identify a specific price; and that including them effectively converted our FFP contracts into "Time and Materials" contracts. I thought that was wrong and said so and was assigned to research it. I sent him the language below from the FAR that I believe supports these options, but he wasn't fully convinced and has asked me to find examples from outside our command. Note: Part of the reason the issue came up was that some of our contracts incorrectly had options without specific limits (i.e. "additional excavation at $54 per cubic foot" with no maximum expressed) and the option was being treated as perpetually renewable by the customer. Do you see anything wrong these types of option as long as the terms are specified? And are these types of options commonly used for any other types of work. "17.204 Contracts. (a) The contract SHALL specify limits on the purchase of additional ... services, or the overall duration of the term of the contract, including any extension. (f) Contracts MAY express options for increased quantities of ... 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." "17.207 Exercise of options. (f) Before exercising an option, the contracting officer SHALL make a written determination ... that exercise is in accordance with the terms of the option, the requirements of [§17.207], and Part 6*. To satisfy ... 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;"
  11. I have a task order that was awarded under an agency specific MAC. The order has a base period of performance with two one-year option periods. The base period ends in September 2013. Program will not have the funds required to fund the 1st option (Oct 13 through September 14). They've asked me if they can instead exercise the second option next year for which they anticipate they will have funds (Oct 14 through September 15). I don't see any way of doing this unilaterally. But can I do this bilaterally? In other words, can I provide notice to the contractor that we will not exercise option 1 of the contract, but that we would like to continue performance on the following year according to the terms of option 2 (length of performance and technical requirements)? I understand this approach doesn't constitute exercising an option. I'm simply extending the contract, but for a later date. So I'm not even sure it can be called an extension. However, I'm concerned about the gap with no performance. I think that since the original task contemplates a total of three years of performance, doing this would not require drafting a justification for an exception to fair opportunity since the total performance time under the task order would not exceed the three year period contemplated by the original order. Is this something I can do bilaterally? If not and assuming that I simply place a new order under the MAC for the required services, would I have a good basis for sole sourcing this (exception to fair opportunity) to the current contractor? Or would I have to compete it again?
  12. I was assigned to administer an IDIQ contract with Options. FAR 17.202((2) says that an indefinite quantity contract can have options. We wish to exercise the IDIQ option. Since the IDIQ contract is unfunded as a whole (there are no funds required) does it follow that therefore we don’t need any funds to exercise the option? If there are no funds required on the base contract does this mean that there is no financial commitment on the IDIQ to verify funds for the option and that the Option is unpriced or $0? To exercise an unfunded Option appears to go against FAR 17.207©(1) and 15.403-2(a), which states that the exercise of an option must be at the price established at contract award or initial negotiation. Please clarify, is this correct?
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