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Change of Performance Period in a Service Contract


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I've been consulted on an issue where a Contracting Officer in another region is administering a contract for work to be performed in my region.

A service contract was awarded with a performance period of one-year, with a one-year option. Due to a miscommunication of contract requirements the performance period put in the contract was not the period needed by the program office and they need to revise the performance period. The CO claims that they are not allowed to change the performance period, only extend it using 52.217-8 Option to Extend Services. I believe you could negotiation a new performance period, as long as the performance period remains a one-year base with a one-year option, by negotiating a supplemental agreement with the contractor. I'm looking for some case law to back up this position, and have been unsuccessful so far - can anyone help with that?

Also, during this discussion of change of performance period we discussed FAR 52.243-1 Changes - Fixed Price (Alternate I), which states, in part, that the CO can unilaterally change the "Time of performance (i.e., hours of the day, days of the week, etc.)." What do you think of arguing that the performance period can be changed using this clause? It is poorly written, since it includes "i.e." and then "etc." - they should have put "e.g." if using "etc.," and the CO is arguing this only allows you to change hours - say instead of performing from 9-5 you can change it to 8-4, or change days from M-F to Sun-Thur, but you cannot change the period from, for example January 1 through June 30, to July 1, through December 31, but I think it possibly allows for such a change in performance period. (If such a change were made the contractor would be entitled to an equitable adjustment of course.) Does anyone have any info on that?

Thanks in advance!!!

Mike

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Just an update. I have found two GAO cases that I think support the position that a change in performance period is within the scope of the original competition and within the scope of the contract. Following below are links to those two of those cases with excerpts from each. If anyone has any thoughts or other cases on point re: this issue I'd love to hear them. Thanks again. Mike

http://redbook.gao.gov/12/fl0056789.php

Phase III of the contract was originally scheduled to be completed by January 1, 1988. After numerous modifications, the contract currently extends until November 16, 1990. Despite the extension of its term, however, the contract requires the same services as were initially required-- the development of an Explosives Vapor Detector, and a walk- through device to screen airport passengers who might be concealing explosives. Thus, we do not view the extension of the performance period, standing alone, as a change beyond the scope of the contract, especially given that the contract here was one for research and development.

http://redbook.gao.gov/11/fl0054045.php

We similarly find that the modification of Starwin's delivery schedule provides no basis for recompeting the requirement. The record shows that Starwin's delay in producing the antenna reflectors was associated with the agency's correction of the defective specification, and that the defects themselves were attributable, in part, to Saratoga since Saratoga created the ECP. /5/ Where, as here, a delay in production is caused by the agency's inability to provide a contractor with adequate specifications, a resulting adjustment to the delivery schedule does not constitute an out-of-scope modification to the contract.

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Just an update. I have found two GAO cases that I think support the position that a change in performance period is within the scope of the original competition and within the scope of the contract. Following below are links to those two of those cases with excerpts from each. If anyone has any thoughts or other cases on point re: this issue I'd love to hear them. Thanks again. Mike

http://redbook.gao.gov/12/fl0056789.php

Phase III of the contract was originally scheduled to be completed by January 1, 1988. After numerous modifications, the contract currently extends until November 16, 1990. Despite the extension of its term, however, the contract requires the same services as were initially required-- the development of an Explosives Vapor Detector, and a walk- through device to screen airport passengers who might be concealing explosives. Thus, we do not view the extension of the performance period, standing alone, as a change beyond the scope of the contract, especially given that the contract here was one for research and development.

http://redbook.gao.gov/11/fl0054045.php

We similarly find that the modification of Starwin's delivery schedule provides no basis for recompeting the requirement. The record shows that Starwin's delay in producing the antenna reflectors was associated with the agency's correction of the defective specification, and that the defects themselves were attributable, in part, to Saratoga since Saratoga created the ECP. /5/ Where, as here, a delay in production is caused by the agency's inability to provide a contractor with adequate specifications, a resulting adjustment to the delivery schedule does not constitute an out-of-scope modification to the contract.

I don't think either decision supports your position. First, neither decision addresses your basic question concerning the interpretation of specific language in the Changes clause, which relates to a matter of contract administration. Questions such as the one you posed are generally addressed by the appeals boards or courts, not GAO.

Second, the facts in each are substantially different than your fact situation. Most contract case decisions are fact specific so that the facts of each must be analyzed for relevance.

Third, in neither case did the agency merely extend the period of performance using the spcecfic changes clause provision that you are questioning. In each there appears to have been changes in the specifications or SOW that resulted in more time being needed to complete the contracts.

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Guest Vern Edwards

There is no doubt that the parties can agree to change the period of performance. The question is whether such a change would be outside the scope of the competition. The answer to that will turn on facts that we do not have. What is the contract for and what is the nature of the change to the period?

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