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We have a Federal Agency that wants to exercise the option for an additional year of perfromance. The contract period does not end for another three weeks but because they did not provide us 60 days advance notice as required by FAR 52.217-9 they contend they cannot exercise the option. How do I convince them that the contract is still in force so they can extend?

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Guest Vern Edwards

The option is not still in force, it expired after the preliminary notice deadline passed without government action. But you can restore it by waiving the notification. See Independent Metal Strap Co., Inc., GAO Decision B-231756, 89-2 CPD ¶ 147, August 17, 1989:

Independent Metal Strap Co., Inc. (IMSC), protests the exercise of the options extending the term of the contracts awarded to it and other firms under invitation for bids (IFB) No. 2FYS–AX–88–0004–S, issued by the General Services Administration (GSA). IMSC contends that since GSA did not effectively exercise the options, the agency is required to issue a new IFB for the extended requirements or promptly evaluate an ongoing solicitation. The protester also contends that the contract extensions were issued without contractual authority and have resulted in sole-source contracts.

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[T]he notice requirement included in the contracts protects the contractor and may be waived either expressly or through conduct by the contractor. When the condition of notice is waived, a valid contract results. Ceredo Mortuary Chapel, Inc., B-232373.5, Jan 9, 1989, 89-1 CPD ¶ 12, Therefore, if a contractor accepts the agency's exercise of its option, notwithstanding a failure by the agency to provide the required notice, a valid contract for the extended term exists.

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The protest is dismissed.

This must all be done before the current period of performance expires, so write a letter waiving the notice and tell the CO to exercise the option.

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RJH46,

I would explain to the KO that he/she still has the ability to invoke -9 via a bilateral modification. Since the government failed to provide you of its intent to extend at least sixty days the government can no longer unilaterally exercise the option. However, this does not mean that the two parties cannot agree via a bilateral modification to exercise the option.

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