Jump to content

GAO Protest Denied - Period of Performance Ext


Recommended Posts

Upon award, a GAO protest was received and inevitably denied. In all, 94 days of performance were lost due to the stay imposed by GAO. Can the Govt mod the contract to get that time back? If so, would the period of performance simply change to a negotiated start date and all other performance periods (opt. 1-4) change with it?

Link to comment
Share on other sites

Guest Vern Edwards

In all, 94 days of performance were lost due to the stay imposed by GAO.

Just so you know, the GAO did not "impose" the stay. The stay is required by statute. GAO cannot order or direct an executive agency to stay performance.

Link to comment
Share on other sites

The clause at FAR 52.233-3 provides: (B) If a stop-work order issued under this clause is canceled either before or after a final decision in the protest, the Contractor shall resume work. The Contracing Officer shall make an equitable adjustment in the delivery schedule or contract price, or both, and the contract shall be modified, in writing, accordingly, if ..."

I think there are two kind of related questions here.

First, can the contractor request an extension of the period of performance because of the stop-work order? This appears to be a BPA that requires the placement of orders. Is the ordering period the equivalent of the delivery schedule, or is it something else that is not subject to adjustment under the Protest After Award clause?

Second, can the Government extend the contract if the contractor does not request an equitable adjustment? Assuming the contract is for at least a few years (whether with or without options), would extending the contract delay any annual price increases that might be built into the contract? If so, the contractor might prefer to shorten the contract by three months and let the price increases take effect when originally scheduled.

My guess is that changes may be made at the request of the contractor, but not unilaterally.

Link to comment
Share on other sites

I find the initial question interesting when the added facts are brought to light. While I would not argue the application of FAR clause 52.233-3 adamantly I do wonder if one could not just extend the performance period without any FAR reference and do it either unilaterally or bilaterally.

A BPA against a FSS is not by definition of the FAR or the terms and conditions of a FSS an “Order”, either delivery or task so it raises the question of whether 52.233-3 is in the BPA. This appears supported by clause I-FSS-646 Blanket Purchase Agreements found in most FSS contracts which states in part “(B) Orders placed under such agreements shall be issued in accordance with all applicable regulations and the terms and conditions of the contract;” or in other words the terms and conditions of the FSS only apply when a “Order” is issued against the BPA. I find no applicable clause reference that says clauses and/or terms and conditions are applicable against the BPA.

My conclusion does not account for any language that the BPA might have in it such as "all clauses of the FSS contract are incorporated into this BPA" which would change my view and then suggest that 52.233.3 would specifically apply.

So again I just raise the thought that you might be able to simply extend the performance period without a need for a specific clause saying you can.

Link to comment
Share on other sites

Guest Vern Edwards

Upon award, a GAO protest was received and inevitably denied. In all, 94 days of performance were lost due to the stay imposed by GAO. Can the Govt mod the contract to get that time back? If so, would the period of performance simply change to a negotiated start date and all other performance periods (opt. 1-4) change with it?

I'm not sure, but I do not think that the CICA stay provisions implemented by FAR 33.104( c) apply to procurements that will result in award of a BPA against a GSA FSS contract.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...