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SubK

TO POP Exceeds IDIQ POP

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We were recently informed by our contracting officer that a GAO protest has revealed that the IDIQ we are on does not contain FAR clause, 52.216-22, that would allow contractors to work on task orders beyond the expiration of the base IDIQ to a date that would have been specified in the clause.   The IDIQ POP ended earlier this year, two of our task orders still have several option years on them. They told us they would not be executing the remaining option periods unless we could find that clause in any of our contracts. We went through all of our contract documents and do not see that clause in any of them.  Is there anything else we could possibly do to avoid loosing these option periods on the current vehicle?

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I do not know, but it is not in any of their IDIQ contracts under this vehicle, and apparently they omitted it in another IDIQ vehicle that they are having the same issue with.

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By the way, are you sure you're not confusing the "period of performance" with the "ordering period," which is set forth in paragraph (a) of FAR 52.216-18 (you do have that clause in your contract, don't you?)  In my experience, the "period of performance" is usually set forth in individual task orders.

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No, that clause is not in the contract either. The only two clauses that even come close that I can find are 52.217-8 and -9. We do have a set period of performance in each task order, but because the base contract has ended they are protesting they dont have the ability to exercise the options without that clause which states (emphasis on (d)):



As prescribed in FAR 16.505(e), insert the following clause in solicitations and contracts when an indefinite-quantity contract is contemplated. 
INDEFINITE QUANTITY (APR 1984) 
(a) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract. 
(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the 'maximum'. The Government shall order at least the quantity of supplies or services designated in the Schedule as the 'minimum'. 
(c) Except for any limitations on quantities in the Delivery-Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. 
(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's rights and obligations with respect to that order to the same extent as if the order were completed during the contract's effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after ______ [insert date]. 
(End of clause) 

 

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Paragraph (d) would establish an outer limit, beyond which the government may not require you to furnish services.  In the absence of this limit, what does the contract say that restricts the government from exercising the options?

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I am trying to figure that out as well.  My boss is out of office today, he just sent me an email about it this morning.  I am also trying to find the GAO protest.  I will update once I receive more information.

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I am not able to find the protest on the GAO website, I will see if my boss has it. My guess is that the clause also states  Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order.   Which would allow us to continue work beyond the base contract ordering period, but that clause is not in our contract so we do not have that ability?

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On July 26, 2016 at 2:58 PM, SubK said:

My guess is that the clause also states  Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order.

Your guess?  Why not determine what the situation actually is (unless you don't want relevant input)...

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On 7/26/2016 at 5:58 PM, SubK said:

I am not able to find the protest on the GAO website, I will see if my boss has it. My guess is that the clause also states  Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order.   Which would allow us to continue work beyond the base contract ordering period, but that clause is not in our contract so we do not have that ability?

You received the two orders within the ordering period of the contract, right?   Oh, I forgot, the contract doesn't include FAR 52.216-18.  Well, what does the contract say about time of performance?  Are you currently performing under the two orders with remaining options?

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On July 26, 2016 at 2:58 PM, SubK said:

I am not able to find the protest on the GAO website.

According to Westlaw, the clause at FAR 52.216-22 has been mentioned in only seven GAO decisions. Ever. The only one of them in which the omission of the clause was an issue was Tender Loving Care Ambulance & Ambullette Co., Inc. B-276571, 97-2 CPD ¶ 25, July 17, 1997. The facts of that protest were not the same as in your case.

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On 7/28/2016 at 9:34 AM, Navy_Contracting_4 said:

You received the two orders within the ordering period of the contract, right?   Oh, I forgot, the contract doesn't include FAR 52.216-18.  Well, what does the contract say about time of performance?  Are you currently performing under the two orders with remaining options?

Yes, we received 2 orders during the ordering period.  The end of the IDIQ contract was Feb of 2016.  Our orders still have 2 options, which the Government just informed us that they will not extend because if the GAO protest.

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On 7/29/2016 at 4:58 AM, Vern Edwards said:

According to Westlaw, the clause at FAR 52.216-22 has been mentioned in only seven GAO decisions. Ever. The only one of them in which the omission of the clause was an issue was Tender Loving Care Ambulance & Ambullette Co., Inc. B-276571, 97-2 CPD ¶ 25, July 17, 1997. The facts of that protest were not the same as in your case.

Thank you, Vern. I am still waiting for a copy of the bid protest in this case.

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SubK,

Could you add the clause to the contract by bilateral agreement?  The fill-ins could capture the understanding of the parties at the time the contract was awarded.

You know, the Government is under no obligation to exercise the options on the task orders -- even if the parent IDIQ contract contained all the right clauses, the Government could still decide not to exercise the options.  In a way, you have an advantage -- you already know that the agency will likely be awarding a new contract, so you can start your efforts to win the new contract.

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1 hour ago, ji20874 said:

SubK,

Could you add the clause to the contract by bilateral agreement?  The fill-ins could capture the understanding of the parties at the time the contract was awarded.

You know, the Government is under no obligation to exercise the options on the task orders -- even if the parent IDIQ contract contained all the right clauses, the Government could still decide not to exercise the options.  In a way, you have an advantage -- you already know that the agency will likely be awarding a new contract, so you can start your efforts to win the new contract.

The IDIQ period of performance is over, and adding the clause doesn't appear to be an option.  I understand the option year is just that, optional.  The contract admins and COR's would like to continue to have us working.  But you are correct, we can look forward to the new contract.  In the mean time our BD leads are trying to see if there is a way we can move the work to one of our other IDIQ contracts.

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2 hours ago, SubK said:

Yes, we received 2 orders during the ordering period.  The end of the IDIQ contract was Feb of 2016.  Our orders still have 2 options, which the Government just informed us that they will not extend because if the GAO protest.

Do I infer correctly that you are not currently performing on either of the two orders you received?  And that you competed performance on both of them in February 2016 (or earlier)?

When do the 2 remaining options expire?

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3 minutes ago, Navy_Contracting_4 said:

Do I infer correctly that you are not currently performing on either of the two orders you received?  And that you competed performance on both of them in February 2016 (or earlier)?

When do the 2 remaining options expire?

We are currently performing on both of these task orders.  The end of the option periods are both around Sept time frame, with 2 more option periods left for each task order.  The base contract (IDIQ) has a POP that ended February of 2016.

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4 minutes ago, SubK said:

We are currently performing on both of these task orders.  The end of the option periods are both around Sept time frame, with 2 more option periods left for each task order.  The base contract (IDIQ) has a POP that ended February of 2016.

If the POP of the contract ended in February, but you are still continuing to perform after that period, it follows that you are "working on task orders beyond the expiration of the base IDIQ," which seems to be in violation of the prohibition the contracting officer mentioned in your original post. If the contracting officer is aware of the fact that you're continuing to perform beyond the expiration of the base IDIQ, and doesn't have a problem with that, then I'm with you - the options should be available to be exercised.  

The underlying contracts aren't GSA FSS contracts, are they?  You might want to look at http://www.wifcon.com/discussion/index.php?/topic/1768-gsa-to-with-options-beyond-k-period/. Perhaps your contracting agency has adopted a policy similar to GSA's.

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4 minutes ago, Navy_Contracting_4 said:

If the POP of the contract ended in February, but you are still continuing to perform after that period, it follows that you are "working on task orders beyond the expiration of the base IDIQ," which seems to be in violation of the prohibition the contracting officer mentioned in your original post. If the contracting officer is aware of the fact that you're continuing to perform beyond the expiration of the base IDIQ, and doesn't have a problem with that, then I'm with you - the options should be available to be exercised.  

The underlying contracts aren't GSA FSS contracts, are they?  You might want to look at http://www.wifcon.com/discussion/index.php?/topic/1768-gsa-to-with-options-beyond-k-period/. Perhaps your contracting agency has adopted a policy similar to GSA's.

The contracting office had been okay with it until now.  They apparently had a GAO protest regarding the issue and that is what is driving all of this.  I have yet to receive a copy of the protest and cannot find it on the GAO website. The agency is not GSA, it is DIA. 

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If there was such a protest, it might have been filed by a company that objected to the extension of a contract beyond the end date without competition. The agency's lawyer might have told them to take corrective action. There may not have been a decision.

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17 hours ago, Vern Edwards said:

If there was such a protest, it might have been filed by a company that objected to the extension of a contract beyond the end date without competition. The agency's lawyer might have told them to take corrective action. There may not have been a decision.

Thanks, Vern.  I received the ruling number, and it was a protest on a GSA schedule Task Order for the Air Force. File B-411481.3  

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Perhaps because it involved the Defense Intelligence Agency...?

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1 hour ago, SubK said:

Thanks, Vern.  I received the ruling number, and it was a protest on a GSA schedule Task Order for the Air Force. File B-411481.3  

This isn't surprising, since it it was an order under a GSA FSS contract. I'm not sure other agencies' IDIQ contracts are subject to the same limitations.

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13 minutes ago, joel hoffman said:

Perhaps because it involved the Defense Intelligence Agency...?

Joel, I don't think that was the case here.  This case involved a GSA contracting action on behalf of the Air Force.

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