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Can FAR 52.237-3, Continuity of Services clause be utilized on an existing Task Order if the Base IDIQ is dead? The clause was in the Base not the Task Order. 

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Batman,

Since you referred to a task order, I'm going to assume that the basic contract contains FAR 52.216-18. If so, paragraph (b) states:

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All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

I would argue that FAR 52.237-3 applies to your task order by operation of FAR 52.216-18. 

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Can you use the continuity of services clause more than once? 

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(b) The Contractor shall, upon the Contracting Officer’s written notice,

(1) furnish phase-in, phase-out services for up to 90 days after this contract expires and

If I extend the contract with this clause, then would the contract now expire at the end of the 90 day extension?

While not an option, It doesn’t say you can’t use it more than once like 52.217-8 does.

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The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. 

 

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deleted.   

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Deaner:

I'm not sure about your thinking, but the Continuity of Services clause, FAR 52.237-3, does not require the predecessor contractor to perform the services for an additional 90 days. It requires the contractor to (1) furnish phase-in training and (2) do its best to effect an orderly and efficient transition. I think the idea is for the successor to provide the service, with guidance and assistance from the predecessor. It requires the predecessor to negotiate a phase-in phase-out plan with the successor.

I think that clause is one of the strangest in the FAR.

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I'm with Vern -- the Continuity of Services clause presumes the successor contract has been awarded -- the incumbent contractor is not responsible for full performance, but only for phase-in/phase-out services in support of the successor contractor.

And I'm with Don -- if the clause is in the parent contract, then it can apply to any of the task orders.

 If you still need full performance, don't use the 52.237-3 clause.  Write a JEFO or other appropriate sole source justification if you need to and extend the period of performance of the order.  Save the 52.237-3 clause for after award of the successor contract.

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16 hours ago, IAMBATMAN said:

Can FAR 52.237-3, Continuity of Services clause be utilized on an existing Task Order if the Base IDIQ is dead?

How many times do we have to say that "death" is a bad metaphor to use for contracts. No contracting person should ever refer to a contract as being "dead." 

A contract is in effect ("alive") as long as any obligation attributable to it is in effect, and many obligations continue under a government contract long after the work has been completed, final payment has been made, and other obligations have been fully executed or have expired. Under complex contracts, some obligations continue in effect for years after the contractor has completed the contract work and received final payment.

Consider, for instance, this paragraph of the clause at FAR 52.215-2, Audit and Records--Negotiation (OCT 2010):

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(f) Availability. The Contractor shall make available at its office at all reasonable times the records, materials, and other evidence described in paragraphs (a), (b), (c), (d), and (e) of this clause, for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in Subpart 4.7, Contractor Records Retention, of the Federal Acquisition Regulation (FAR), or for any longer period required by statute or by other clauses of this contract. In addition—

(1) If this contract is completely or partially terminated, the Contractor shall make available the records relating to the work terminated until 3 years after any resulting final termination settlement; and

(2) The Contractor shall make available records relating to appeals under the Disputes clause or to litigation or the settlement of claims arising under or relating to this contract until such appeals, litigation, or claims are finally resolved.

Some government contract litigation has continued long after completion of the contract work and final payment. It took a couple of decades to settle the defective pricing litigation between the Government and United Technologies after the final delivery of aircraft engines, and the A-12 contract litigation continued long after the termination of the contract for default.

What the OP presumably meant was that the IDIQ ordering period had expired. Don and i20874 are right. If the task order was properly issued under the contract, then the contract clauses still apply to it, including FAR 52.237-3.

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I appreciate all of the input, I’m leaning toward using FAR 52.237-3, here’s the scenario:

Base IDIQ expired January 2017

52.217-8 was used to extend Task orders to July 2017

52.237-3 will be used for phase in/out

 

52.217- 8 says “The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months.”  Does the phase in/out up to 90 days conflict?

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What part (term) of the base IDIQ expired on January 2017?

Does the contract include FAR 52.216-22? If so, what date was inserted in paragraph (d)?

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My thought process was 2 fold. What if you needed 100 days of phase in/out services, could you use the clause twice? And could you use it on the last day of the contracts POP to have the incumbent contractor start the phase in/out services for 90 days? 

I did error in thinking the clause extended the contract for 90 days, but after reading the clause again I don’t think that anymore. I think the way the clause is intended to operate is you use it for the last 90 days (or however long) of the incumbent contractors contract to start the phase in/out services with the successor contractor.

 

Sorry IAMBATMAN, I'm not trying to hijack your thread. 

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Deaner,

It is good to read the clause, isn't it?

The 52.237-3 clause need not be used only in the last 90 days of the incumbent contract -- it can also be used on the first 90 days of the successor contract.

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27 minutes ago, ji20874 said:

It is good to read the clause, isn't it?

Yes it is, every word of every line... and in some cases of every page.  

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@Vern Edwards

Term? it was a base plus 4 options, the base 6 month extension via 52.217-8 expired in January

FAR 52.216-22 paragraph (d) "180 days beyond the expiration date of the contract"

 

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Batman,

 

Please help me understand.  I can't make sense of this:

On 6/21/2017 at 8:40 AM, IAMBATMAN said:

52.217-8 was used to extend Task orders to July 2017

versus:

1 hour ago, IAMBATMAN said:

it was a base plus 4 options, the base 6 month extension via 52.217-8 expired in January

Does the -8 option expire in July, or did it already expire in January?

And was the -8 option exercised for the parent IDIQ contract, or was it exercised on one/some/all task order(s)?

If the -8 option was exercised for the parent IDIQ contract, what did the -8 option purchase, inasamuch as a parent IDIQ contract does not purchase any services?

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In 2016 -8 was used to extend option year 4 of the base IDIQ to January 2017.

In January 2017 -8 was used on  specific mission critical Task orders that ended in January 2017 to extend them to July 2017

- 8 for the base IDIQ expired in January, -8 for those extended task order will expire in July

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On 6/21/2017 at 0:15 PM, ji20874 said:

The 52.237-3 clause need not be used only in the last 90 days of the incumbent contract -- it can also be used on the first 90 days of the successor contract.

I don't understand what you mean by "used." 

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Part of the phase-in and phase-out issue is the preparation for transitioning.  Following is a DRAFT list I am working on to lead an effort to make the transition period for O&M contracts less stressful in my organization.   I plan to include several CORs (Facilities Management), Technical Experts (O&M), and contracting personnel.  I intend the conversation to lead to a change in the paragraph in the PWS on the transition period.  Suggestions for improvement are always welcomed.

-  Proposed Transition Mission Statement:  “Protect Government property, maintain continuity of services, on-board incoming Contractor, and out process outgoing Contractor.”

-  Should we change anything in the way we currently conduct Post-Award conferences?

-  This is a labor-intensive period.  Should the Government provide temporary manpower to assist the COR? (need duties and responsibilities.)

-  Ensure the Government has copies of the PM Guides and PM Records.

-  Inventory GFP at least once per POP (and maybe 90 days prior to contract end?).

-  COR tracks, receives, reviews, and approves deliverables.

-  How should we incentivize the incumbent to cooperate with the incoming Contractor? (Phase-Out CLIN performance measures.)

-  What should be the phase-in period CLIN performance measures?

-  Need to review and accept/modify the current PWS phase-in/phase-out guidance.

-  Emphasize the impact of the transition period to the CPARS evaluation.

-  Seek prior O&M Contractor employees’ input.

-  Invoice-Payments audit in preparation to contract closeout.

-  Who should lead the transition effort (COR)?

-  Initial Deficiency list timeline to identify and correct.  Effects on invoice & payment.

-  Create a transition matrix with timeline and responsibilities.

-  Do we have an established baseline for the building metrics for energy, water use, environmental, etc.?

-  HSPD12 badges inventory.

-  Keys inventory.

-  Initial QA process.

-  Should we include a list of local or regularly used subcontractors as FYI to the incoming Contractor?

-  Incumbents with poor performance record have an increase poor transition risk.  How to manage that risk.

-  Should the Government include a requirement for the contractor to propose a phase-in/phase-out plan as part of the initial proposal?

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@boricua:

It seems to me that the most important factor in phase-in/phase-out success is "know-how" and records. "Know-how" is the story of how things really do (and will) work. Most of that is in people's heads and is not necessarily the same as what is in documents and files. Records contain documents and files (paper and electronic) that contain information of all kinds that is pertinent to performance, but that does not necessarily reflect how performance really works. I don't see much about this in your list.

The new contractor will want to know how things really work (the "real skinny'). That info is crucially important for a smooth transition. Where are they to get that info., if at all? (And don't say from the COR, because the COR might or might not have it, or might have only part of it, or might or might not be interested in providing what he or she does have.) While pre-performance conferences are necessary, they are not necessarily useful in communicating "know-how," because a lot of know-how is information that the people who have it do not want other people--especially people in the contracting office--to know. (People in contracting offices usually are not very realistic about this.) How is the new guy to get "know-how"? In the course of time? And what is happening to performance while that time is passing?

The new contractor will also want to know what records exist, how they are organized, who has them, and who owns them. It is crucially important to determine in advance is what records the new contractor will not get and what records they will get, what conditions the one they'll get are in, and how, when, and where those records will be provided to them. Instead of providing a list of "regularly used" subcontractors, what about the outgoing incumbent's purchasing records? Who has them? Who owns them?

For any number of reasons, the outgoing incumbent might or might not be helpful to the new folks with regard to know-how and records. The outgoing incumbent might consider some records to be proprietary or confidential by law. Such info might include employee performance records, which might be governed by state law.

Generally, your list strikes me as administrative instead of managerial and too focused on the Government's needs. I think it needs more items that refer to the incoming contractor's needs.

  • Bag the "mission statement."
  • Some of the items relate to contract closeout, not contractor transition. Those processes are not the same.
  • I'd say that the CO should lead or monitor the transition effort.
  • Any "metrics" ought to already be in the new contractor's SOW. If they're not, well....
  • Bag the idea of a proposed phase-in/phase-out plan. Instead, ask for a phase-in/phase-out "wish list."

 

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