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Ability One contracts


Bypassman

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Our firm has documented three instances where the same company participating does an outstanding marketing job that has impacted our firm and several other small businesses.

The Agency allows the current contract to expire without excercising available options ( Thus the small business can not claim it impacted its business substantially since it doesn't have the contract).They then issue an interim one or two month contract till the Ability One contract is in place. A representive of our firm met with the 502 C non-profit firm and stated" you have taken two of our contracts we only have one left at *******". The reply was "we are taking everything on that installation over ther next year its in the works Sorry".

Last month our firm was told we would not be receiving our last option because of funding issues but would only be receiving a six month extension. This time frame corresponds exactely with the 502 C's schedule for their other work awarded to them an follows the same pattern that occurred at the other three installations. We have contacted the SBA to no avail. My questions are.

1. In the event we can convince the agency otherwise can they still excercise the remaining option after they have used the extension of services clause? If so were can I find that language.

2. The Contract is currently a SB set - aside and we were awarded the contract as a small business but now have 8(a) certification, the 502 C is a billion dollar company could the Agency sole source through SBA to us or does Ability One program have priority ?

Thanks

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Guest carl r culham

1. If the contract has not expired then I believe the option clause (FAR 52.217-9) for extending term of contract would be available for exercise and the language of the clause is what allows the exercise ("before the contract expires.").

2. Ability One has statutory preference for items/services on the Procurement List. See FAR 8.0 and 8.7

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Guest Vern Edwards

Is this the situation? The agency had an option to extend under FAR 52.217-9, "Option to Extend the Term of the Contract," but did not exercise it. It exercised the option at FAR 52.217-8, "Option to Extend Services," instead, for one or two months, planning to award a new contract to an Ability One firm. You hope to change the agency's mind. You want to know if the agency can still use the 52.217-9 option. Is that right?

If that's right, did the agency actually let the contract expire before exercising the 52.217-8 option? Was there a time gap between the last day of the contract and the exercise of the 52.217-8 option?

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Is this the situation? The agency had an option to extend under FAR 52.217-9, "Option to Extend the Term of the Contract," but did not exercise it. It exercised the option at FAR 52.217-8, "Option to Extend Services," instead, for one or two months, planning to award a new contract to an Ability One firm. You hope to change the agency's mind. You want to know if the agency can still use the 52.217-9 option. Is that right?

If that's right, did the agency actually let the contract expire before exercising the 52.217-8 option? Was there a time gap between the last day of the contract and the exercise of the 52.217-8 option?

You are correct. The contract did not expire before they exercised 52.217-8.

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Guest Vern Edwards

I think that if the contract is not expired, and if you are willing to waive the deadline for exercise of the 52.217-9 option, then the government should still be able to exercise the option. The only issue might be the possibility that the Government Accountability Office (GAO) would consider exercise of the option after the exercise period has passed to be inconsistent with the Competition in Contracting Act. However, I know of no GAO decision to that effect.

I'd be surprised if you can get the government to change its mind.

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I think that if the contract is not expired, and if you are willing to waive the deadline for exercise of the 52.217-9 option, then the government should still be able to exercise the option. The only issue might be the possibility that the Government Accountability Office (GAO) would consider exercise of the option after the exercise period has passed to be inconsistent with the Competition in Contracting Act. However, I know of no GAO decision to that effect.

I'd be surprised if you can get the government to change its mind.

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Can we do anything about the Ability One issue?

You face an uphill battle. This is from FAR:

8.704 Purchase priorities.

(a) The Javits-Wagner-O?Day Act requires the Government to purchase supplies or services on the Procurement List, at prices established by the Committee, from AbilityOne participating nonprofit agencies if they are available within the period required. When identical supplies or services are on the Procurement List and the Schedule of Products issued by Federal Prison Industries, Inc., ordering offices shall purchase supplies and services in the following priorities:

(1) Supplies:

(i) Federal Prison Industries, Inc. (41 U.S.C. 48).

(ii) AbilityOne participating nonprofit agencies.

(iii) Commercial sources.

(2) Services:

(i) AbilityOne participating nonprofit agencies.

(ii) Federal Prison Industries, Inc., or commercial sources.

(B) No other provision of the FAR shall be construed as permitting an exception to the mandatory purchase of items on the Procurement List.

© The Procurement List identifies those supplies for which the ordering office must obtain a formal waiver (8.604) from Federal Prison Industries, Inc., before making any purchases from AbilityOne participating nonprofit agencies.

Apparently the agency decided to not exercise an option because they view Ability One as a priority source and the most advantagous method of fulfilling the need. An option is simply that and the CO has latitude in whether to exercise it or not.

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Guest carl r culham

Without knowing all, and I mean all, of the particulars of the specific case at hand you are most likely at a dead end with regard to the "Ability One issue". Ability One is a whole world in and off itself, for example sometime explore "procurement exception" which FAR 8.7 discusses in general.

Only constructive idea that I can think of would be to approach the Ability One entity with regard to subcontracting opportunities.

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