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prodigalko

Replacement Contracts Guidance

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I am looking for guidance regarding replacement contracts.  As I am reading the GAO Redbook and Contract Attorney's Deskbook (pages 24-23 to 24-24 at this link) I am envisioning the process below ( Funding of Replacement Contracts, B-232616, 68 Comp. Gen. 158 (1988); Navy, Replacement Contract, B-238548, 70 Comp. Gen. 230 (1991):

1.  Issue determination and finding regarding whether award was made erroneously (was improper).  (if yes then proceed to step 2)

2.  Determine if award was made in good faith.  (if yes then proceed to step 3)

3.  Determine if bona fide need existed at time of award and still exists.  (if yes proceed to step 4)

4.  Determine if size and scope of the potential contract and previous contract are the same.  (if yes proceed to step 5) 

5.  Issue new contract without undue delay.  The timeline is not clear here, but if you take the protest funds availability as guidance, then 101 days is too long.  

I did not see any new GAO cases that would modify the doctrine or its application, but may have missed something.  The only guidance I could find other than the redbook and CAD, was DOE fiscal guidance. Thank you. 

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General guidance would be helpful.  I do not have specific questions, but I have not done this before and was just curious if anyone had any experience or lessons learned.

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The Contract Attorney's Deskbook says obtaining funding for reprocurement is difficult and may make that remedy impractical.

You might get money back to the US Treasury, but your agency getting it back is unlikely in my experience.

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Jamaal:

Many readers might not know about the Contract Attorney's Deskbook. Please provide a complete citation: title, edition, volume, chapter, and page. A link would also be helpful.

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I should have included the citation in my post. Here it is - Contract Attorney Deskbook, 2014, Volume II, Chapter 19 (Page 19-6 [22]).

I am actually having trouble pasting text and links into my posts since the recent Wifcon change over.

Here is what happens:

this HTML class. Value is

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There is a hyperlink to the CAD in my first post after the page citation.  

To add a link just highlight the word and then click the two chains linked together icon to the right of the underline icon in post dialogue, then put in the address of the link or paste and hit "insert into post".  This should be the same as gmail. 

 

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Guest Jason Lent

I encountered one of these in somewhat recent history. We had secured certified prior-year funding (although the OARS took a little over a year to process for whatever reason - that was two contracting officers ago - but the type of multi-year funding involved was still valid for use on the requirement) and received the thumbs up from comptroller to use it.

That is, until the contracting attorney interjected and convinced comptroller that use of the funds wasn't proper in accordance with item 5 (with regards to undue delay). I pressed him to support his claim regarding what constitutes an undue delay since it was not stated in any of the regulations I read, nor in what he provided. He maintained that any award using our funding was improper by referring to lessons in JAG school where anything beyond the following fiscal year was "problematic" and put the onus onto the comptroller to demonstrate via fiscal or legal guidance that specifically allowed us to use the intended (multi-year) funding

I scoured the Financial Management Regulation, Volume 3, Chapter 10, Section 100308 which outlines the use of expired and closed funds on replacement contracts. It does not offer anything to clarify the question regarding undue delay.

If anyone is especially wise with regards to this issue, I would be excited to read something firmer than "the professor at a school I attended said this".

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My situation actually just became moot.  I was relying on the Redbook, but a finance individual (below the comptroller) in the chain decided they were not comfortable with it (despite the fact that the comptroller's signature is required on the PR to certify prior year funds) and effectively killed it by spreading a lack of understanding.  

I do not know that there is much that can be done when individuals will not read the legal treatise for their career field published by the Comptroller General.  You could write a legal memo (question presented, applicable law, law analogically applied to your facts, determination), but I usually avoid this because I'm not admitted to the bar and do not know how it would be received.  As a law student they hammer us pretty hard about not practicing without a license, but legal reasoning is pretty important to a contracting officer, so the line is difficult.  

I think the only real approach in that instance is to send case law and citations and hope that the attorney has time and effort to read them, do their own research, and make a decision.  

Regarding undue delay I think the only guidance you will find is in cases like JI cited above that deal with reasonable time to award to the next low, not specifically with replacement contracts.  In that instance I think that a case could be made that 100 days is the limit because that is as long as protest funds are available, and is longer than the 60 days for claims.  However, based on interactions where I have picked up an overdue or soon to be overdue claim it does not seem unreasonable to delay a claim response if necessary; although this may require an attorney to explain to the COFC why it's late.    

So what is the definition of "undue delay"?  I would think two years would be hard to justify, but it's likely to be driven by the facts of the case.  Two years on a multi-year contract is a lot different than on a purchase order with a 30 day delivery, or even a service contract with a six month PoP; and two years could be entirely reasonable on a systems contract for production that is ten or twenty years.  

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