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ACQCON

Extend beyond ordering period of a MATOC

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Good morning Acquisition Professionals,

  Our command has a contract (multiple award construction contract) that is beyond its ordering period (April 2015  end of ordering period).  The contract capacity was $99M and $15M was still available when the ordering period ended.  A task order under this contract is still active until Oct 2016.  We have an unforeseen condition that was estimated at $28M.  The questions are:

Is it possible to increase the capacity of the contract whose ordering period ended?  If possible, do we need to extend the ordering period? Are these considered bridge action?

Could our command cite FAR 6.302-1 to justify the task order increase instead of increasing the contract capacity and extend the contract ordering period?

Thank you for your assistance.

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ACQCON:

Your opening post is confusing.

You have an outstanding task order to which you feel the need to make a $28M change due to an "unforeseen condition." The ordering period has expired. Are you asking if you need to extend the ordering period so you can make the change?

If that is your question, then answer this:

Is the $28M worth of work within the scope of the order?

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If the unforeseen condition is within the scope of the order, then you can issue a change order under the contract Changes clause without extending the ordering period. You are not issuing a new order, you are making a within scope change to an existing order.

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Thank you Vern.  What about the contract capacity?  The $28M unforeseen will exceed the contract capacity by $13M. Does it matter?  The ordering period ended.

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3 minutes ago, ACQCON said:

The $28M unforeseen will exceed the contract capacity by $13M. Does it matter?

If you're considering a scope analysis, there is no bright line or specific percentage concerning dollar amounts. In other words, do not listen to frogs who tell you bedtime stories about 10% over is OK, but 20% raises a red flag, and anything over 25% is definitely out of scope (for example). That's all nonsense.

Scope of the contract and scope of the competition analyses are performed on a case-by-case basis, according to the individual situation. GAO has listed factors like: past procurement, contract type, period of performance, type of requirement, goods vs. services, the solicitation, and of course, the contract. Scope analysis is highly fact-specific.

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Hi Pepe,  the question was if it is okay to exceed the contact ordering limit ($99M) on a multiple award contract by $13M if the contract ordering period ended (ended in Apr 2015). The task order that will award the increased amount is still active (CCD is Oct 2016).

Thank you.

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ACQCON, is the $99M limit a limit on the amount of work that can be ordered or a limit on the amount that can be spent under the contracts?  There is a difference.

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Edit- your last answer that $99 million is the ordering limit wasn't too clear and seems to contradict the OP where you said that "the contract capacity" is $99 million, which I would assume would be the limit of cumulative orders. 

Regardless, It would seem natural that, if unforeseen conditions require you to spend $28 to complete the original task order construction scope, then a $13 overrun would be allowable and unavoidable. As stated above, it isn't a new order, which would involve additional scope, thus the ordering period is irrelevant. 

There are situations where one cannot exceed a dollar limit, such as the Military Minor Construction Statutory Limits or limits on Programmed Amounts but you didn't indicate that any stat limit applies here 

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1 hour ago, joel hoffman said:

There are situations where one cannot exceed a dollar limit, such as the Military Minor Construction Statutory Limits or limits on Programmed Amounts but you didn't indicate that any stat limit applies here 

joel,

So what happens if a change within the scope of the contract would increase the contract price above the statutory limits? You have to use different money to fund the modification?

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Don, I've been told that we have to descope, delete something or halt and notify Congress before exceeding a Statutory ceiling. 

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Exceeding a statutory threshold violates the Purpose Statute and possibly the Anti-Deficiency Act.

This was discussed in an exceptional USACE-lead construction admin course I took last year. Down-scoping is an option and should focus on unnecessary aspects of the project because the project has to result in a complete and usable facility. No project-splitting with the intention to make the project whole with additional funds at a later date.

The Fiscal Law Deskbook, 2014, Chapter 8, pg. 8-46 provides viable options for exceeding statutory thresholds.

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Thanks, Jamaal 

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9 hours ago, ACQCON said:

Thank you Vern.  What about the contract capacity?  The $28M unforeseen will exceed the contract capacity by $13M. Does it matter?  The ordering period ended.

Emphasis added.

9 hours ago, ACQCON said:

Hi Pepe,  the question was if it is okay to exceed the contact ordering limit ($99M) on a multiple award contract by $13M if the contract ordering period ended (ended in Apr 2015).

Emphasis added.

ACQCON:

You (and others) simply MUST learn and use the correct terms for IDIQ contracts. "Contract capacity" and "contract ordering limit" are meaningless terms from a regulatory and contractual standpoint.

IDIQ contracts employ the following terminology:

  • Maximum quantity (see FAR 16.504(a)(1) and (4)(ii) and 52.216-22(b))
  • Minimum quantity (see FAR 16.504(a)(1) and (2) and (a)(4)(ii) and 52.216-22(b)
  • Maximum order limitation (see FAR 16.504(a)(3) and 52.216-19(b))
  • Minimum order limitation (see FAR 16.504(a)(3) and 52.216-19(a))
  • Ordering period (see FAR 52.216-18(a))
  • Last date of required performance (see FAR 52.216-22(d))

If you still have a question, please ask it using the proper terms.

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