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gfsullivan

Transferring option LoE to base PoP LoE allowable?

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Question presented: Are there any legal or regulatory (FAR, GAO opinions, case law etc.) impediments to reducing the level of effort (LoE) of an unexercised option year (subject to 52.217-9) and increasing the LoE by the same price in the base period of performance (PoP) of the contract via bilateral modification and not treating it as a sole source action subject to FAR 6?

Factual background: In this instance, there will be no increase in overall contract price (including options). There will also be no increase in the overall LoE (including options). All PoPs (base and options) will remain unchanged. The contract is FFP for 6 FTEs of contractor support in the base and option periods. 

 

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I presume that the services are severable and each period is is funded with annual appropriations. Is that right?

If so, in each case, increasing LOE and decreasing LOE, you are changing the scope of the contract period. The decrease should be no problem. The increase would likely require competition or a sole source justification.

If it's a big contract and there was a lot of competition for the award, either change might prompt a "scope of the competition" protest from people looking to make you recompete. The fact that the overall price will not change is probably irrelevant. 

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1 hour ago, gfsullivan said:

The contract is FFP for 6 FTEs of contractor support in the base and option periods. 

 

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@Vern Edwards

The services are severable but it's no year funding. We would be buying more support in the base period but not able to buy the same level of support in the option. Do you still think we would have to compete or justify as some source the increase in the base PoP?

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I think you probably need a J&A. If I were in your shoes I might just go ahead and mod the contract without a J&A and be done with it. It doesn't sound like there's much money involved. But if you're concerned about doing that you could check with your competition advocate or counsel.

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gf, you mentioned an unexercised option.  Has the period in which you were required to give notice of your intent to exercise the option expired?  If so, have you given notice?  Similarly, has the period in which the option was to be exercised passed?

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Just a thought.......

FAR 16.207 - FFP Level of Effort are for under $150K contracts usually, of course can be higher if your agency policy allows.    Question was it handled by simplified acquisition procedures?   If the answer is yes then a J&A is not needed as you would be in the world of single source and not sole source.    See FAR 13.106(1)(b). 

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