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Hello Vern and all!

I would appreciate your input on this issue - of course it is also going to legal for their opinion but you have more contract knowledge in your big toe than our legal has in the whole system, sadly to say. I thought I might get myself an educated answer here for my own peace of mind regardless of what legal has to say.

So I am stuck between a rock and hard place; I have a task order written off an IDIQ base contract. The TO was written in FY 12. The CLINS are for people written in the quantity of "months". Each month was priced off of 40 hours per work week per person. Now we are in FY13 and have another 6 months of PoP remaining. The vendor has informed me that due to the start up of recruitment, security and placement we will have FY12 funds remaining that will be unbilled and that there is enough to add more people for the remaining 6 months if we would like. THe "rock" argues that we purchased man-hours toward an effort and in order to recover those man hours we should be able to legally add additional people. The "hard place" argues that additional people is considered outside scope and new work and that it would be a violation of the bona fide needs rule to use "left-over" FY12 funds to add additional people.

Who is right?

Second side question if you do not mind. The "hard place" also insist that since they are the CO of the IDIQ they get to make CO decisions on the TOs. I believe that once the TO is signed by me (another CO) that the CO decisions fall on me, unless they are a direct violation of the base IDIQ.

Who is right on this issue?

As always, thank you!!

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Guest Vern Edwards

I cannot answer the first question, because I don't know enough about the order and the funding.

1. What exactly did the order buy? Twelve months of services of a specified number of people? For a firm-fixed-price, billable by the month? Did you obligate the full year's price? Did the contractor fail to fully staff the order? If so, do you consider that a default? If not, why not?

2. What do you mean when you say that you have "funds remaining"? What does "funds remaining" mean? Do you mean that the contractor has not billed you for services that it did not perform, so that some of the funds that were obligated have not yet been expended?

As for the second question, is this a GSA FSS contract or another agency's contract? If it's another agency's contract, what are its rules for use and where are they published? Are they part of an interagency agreement?

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Thanks for responding so soon. I will try to answer everything to give you a clear picture.

The order bought a labor category per month for 12 months...e.i. "CLIN 0001 - Secretary1 - 12 months, CLIN 0002 Secretary2, 24 months (2 Ea Secretary2 x 12 months each)" etc. Pricing is Firm Fixed Price Months, billing is per month and the task order has been funding in full with FY12 funds. Period of Performance started in FY12 and finishes in FY13. The contractor "fully staffed" the required labor catagories but billing did not begin until the staff was on site. Therefore the months that went by during the recruitment of staff and the security checks of the staff will never be billed against the contract. This lag in billing was expected and not default on the part of the contractor. So yes, the funding was obligated but will not be expended during the contract period.

As for the other question the IDIQ contract is owned by my agency but was written in a different office in my region. It is not an IAA situation. The other office has the contract and I only have bits and pieces of it (that sounds bad, I know, but we worked together to get the TOs in place appropriately and IG has had the contract since - The file is to big to email and I am just awaiting IG to release in our contract system).The ordering has already taken place and now we disagree about who has the authority to make post award decisions on the task order.

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Guest Vern Edwards

Well, my first thought is that you had a phony "obligation" and banked money. You awarded a "contract" that you did not expect the contractor to fully perform, but recorded an oblgation for the full performance. That does not sound like a valid obligation to me. By rights, the funds were not, in fact, obligated and your agency has lost the unobligated balance, i.e., the amount of the "funds remaining."

Because the contractor did not perform, you did not expend the entire obligation within the period of performance. The obvious solution is to extend the period of performance so that you can buy the hours that you did not get when you should have. But it does not sound to me that there was an excusable delay. Because there was no excusable delay you have no contractual basis on which to extend the period of performance. So the hours that you would buy in order to expend the dollars obligated but not expended would not be the bona fide need of the year for which the funds were appropriated. Also, any extension of the period of performance in order to permit you to buy the hours that you did not get would be out of scope and would require a sole source justification.

As for your other question, it's your order and your money and the CO who awarded the contract has nothing to say about how you manage that order as long as you do not violate the terms of the contract. That's what I would tell the other CO, and then hang up. What's he going to do?

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Vern, it appears to me that the PCO you recommend telling off agrees with you regarding not being able to extend the performance period with the FY 12 funds.

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Thank you everyone for your opinion! We will see what legal has to say. I lean more toward not doing the mods than I do toward doing the mod but I am in a tight spot so whatever the result I just want to have as much back-up when I have to tell the rock that it's a no go.

Joel, just for records sake I respect and value the PCO - one of the few bright spots in this agency's contracting world ;)

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