Jump to content
The Wifcon Forums and Blogs
Sign in to follow this  
MAY-D-FAR-B-WIT-U

Use of 52.217-9 to extend IDIQ Ordering Period

Recommended Posts

My agency is issuing a 10 year IDIQ, and the 5 year ordering period limitation applies to my agency (nothing in regulation states this can be waived, otherwise we would have include a 10 year ordering period in the D&F for the 10 year PoP). We will like to modify the clause in 52.217-9 to extend the ordering period using the language below, and we have a few questions

1. Should this be moved to section H as an H-Clause? or does the phrase "substantially the same" at the beginning of the clause imply this kind of change is authorized per "52.104"

2. Would it be cleaner just to have a 5 year base and 5 year option?

3. When its time to exercise the option to extend the ordering period, does 17.207 (c ,d,&e) come into play at all?

4. Will the simple change below work or are we missing something?

 

Thank you.

Option to Extend the ORDERING PERIOD of the Contract (Mar 2000)

(a) The Government may extend the "ORDERING PERIOD" of this contract by written notice to the Contractor within _____ [insert the period of time within which the Contracting Officer may exercise the option]; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least ___ days [60 days unless a different number of days is inserted] before the ORDERING PERIOD expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended "ORDERING PERIOD" shall be considered to include this option clause.

(c) The total duration of this ORDERING PERIOD, including the exercise of any options under this clause, shall not exceed ___________ (months)(years).

Share this post


Link to post
Share on other sites

Well MAY-D received no response to questions posed and has not been back to reignite his/her post.  Even in the apparent absence of interest I thought I would attempt a response.  Hopefully in the view of others I am on the right track.....

On ‎7‎/‎18‎/‎2018 at 3:21 PM, MAY-D-FAR-B-WIT-U said:

1. Should this be moved to section H as an H-Clause? or does the phrase "substantially the same" at the beginning of the clause imply this kind of change is authorized per "52.104"

The question implies that MAY-D is using the UCF  suggesting that the intended contract will also include FAR 52.215-8.  As the intent is to use 52.217-9 in a format that is "substantially the same" as is provided in the FAR it seems that having the clause in section I is appropriate as the clause still is a clause that should not have precedence over a special contract requirement (Section H).

 

On ‎7‎/‎18‎/‎2018 at 3:21 PM, MAY-D-FAR-B-WIT-U said:

2. Would it be cleaner just to have a 5 year base and 5 year option?

Maybe not "cleaner" so to speak but doing so would be very beneficial to the need to comply with 17.207 which I believe would apply to evaluating the option to extending the ordering period AND the evaluation of the optional ordering period for the initial award of the IDIQ.    In the end it could be done either as MAY-D is proposing (10 year contract, 5 year ordering period) or the 5 + 5.

 

On ‎7‎/‎18‎/‎2018 at 3:21 PM, MAY-D-FAR-B-WIT-U said:

3. When its time to exercise the option to extend the ordering period, does 17.207 (c ,d,&e) come into play at all?

Yes I believe it does.   As FAR 17.2 addresses any option that is conceived under its general principles then 17.207 would apply.

 

On ‎7‎/‎18‎/‎2018 at 3:21 PM, MAY-D-FAR-B-WIT-U said:

4. Will the simple change below work or are we missing something?

Yes it will work.  Again  as expressed already the concerns with regard to missing something is the effort to evaluate the optional ordering period for initial contract award and the evaluation necessary to award the optional ordering period.   I found this discussion thread in WIFCON that gives a little different twist to the idea that may be of benefit in thinking about the proposed approach of 10/5 + 5 that might be worth the read.

 

Share this post


Link to post
Share on other sites

DFARS 217.204(e) limits the ordering period for an IDIQ contract to 5 years.  But the FAR does not, and if MAD-D's agency is outside the reach of the DFARS, well, let's just say that the DFARS limitation will not apply.

Everything in FAR Subpart 17.2 is written for options that purchase supplies or services.  Nothing in FAR Subpart 17.2 is written for options extending the ordering period of task and delivery order contracts.  

In my mind, if the option exercise that is being considered is for the purchase of supplies or services, then FAR Subpart 17.2 applies.  If the option exercise being considered is for the extension of the ordering period of task and delivery order contracts, then FAR Subpart 17.2 cannot be blindly or rigidly applied because FAR Subpart 17.2 was not written for options extending the ordering period of task and delivery order contracts. 

Share this post


Link to post
Share on other sites
17 minutes ago, ji20874 said:

Everything in FAR Subpart 17.2 is written for options that purchase supplies or services.  Nothing in FAR Subpart 17.2 is written for options extending the ordering period of task and delivery order contracts.  

@ji20874 Please prove the truth of those statements. I ask you to do this because FAR 17.200 provides as follows:

Quote

17.200 Scope of subpart.

This subpart prescribes policies and procedures for the use of option solicitation provisions and contract clauses. Except as provided in agency regulations, this subpart does not apply to contracts for (a) services involving the construction, alteration, or repair (including dredging, excavating, and painting) of buildings, bridges, roads, or other kinds of real property; (b) architect-engineer services; and (c) research and development services. However, it does not preclude the use of options in those contracts.

I don't see anything in that scope statement or anywhere else that says FAR Subpart 17.2 applies only to options for the purchase of supplies and services. Moreover, DFARS 217.204 states, in part:

Quote

217.204  Contracts.

      (e)(i)  Notwithstanding FAR 17.204(e), the ordering period of a task order or delivery order contract (including a contract for information technology) awarded by DoD pursuant to 10 U.S.C. 2304a—(A)  May be for any period up to 5 years; (B)  May be subsequently extended for one or more successive periods in accordance with an option provided in the contract or a modification of the contract....

If FAR 17.2 does not apply to options to extend ordering periods, why does DFARS address that matter in 217.204?

I'm not saying that you're wrong. I'm saying that I don't understand how you reached the conclusion that FAR Subpart 17.4 does not apply to options to extend an ordering period. Moreover, doesn't an ordering period bear on the matter of purchasing supplies and services? Are you making a distinction between "applies to" and "written for"?

Share this post


Link to post
Share on other sites

@ji20874     While I did not include in my post I did consult FAR 1.102-4(e) prior to considering how I would respond.  I think it covers this situation along with the other thoughts provided by Vern with regard to the fact that the DFARS does address the ordering period.

Thinking about MAY-D's post your thoughts did give me pause to reconsider the questions and intended wording for the 52.217-9 clause.  Based on your thoughts I came up with this..............

 

Option to Extend the Term of the Contract (Mar 2000)

(a) This contract contains two specific Terms: 1) A Performance Term or period which is ten(10) years, and 2)  an Order Placement Term or period which is five (5) years.  The Government may extend the Order Placement Term of this contract by written notice to the Contractor within _____ [insert the period of time within which the Contracting Officer may exercise the option]; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least ___ days [60 days unless a different number of days is inserted] before the Order Placement Term expires. The preliminary notice does not commit the Government to an extension.

(b) The total duration of this contract, including the exercise of any options under this clause, shall not exceed ten (10) years.

(End of Clause)

 

 

Share this post


Link to post
Share on other sites
7 hours ago, Vern Edwards said:

@ji20874Are you making a distinction between "applies to" and "written for"?

 

Yes.  FAR Subpart 17.2 was written long before the FAR envisioned task and delivery order contracts.

The DFARS supplementation proves nothing about the text of the FAR.

Share this post


Link to post
Share on other sites
1 hour ago, ji20874 said:

FAR Subpart 17.2 was written long before the FAR envisioned task and delivery order contracts.

So what you meant by your earlier remarks was that the original authors of FAR Subpart 17.2, which was written in the mid-1980s, were not thinking of options to extend the ordering period of task and delivery order contracts, because there were no such things when those rules were written. You did not mean that FAR Subpart 17.2 does not now apply to such options, but that COs must apply it thoughtfully.

Thank you.

However, I disagree that DFARS supplementation of the FAR proves nothing about the text of the FAR. The DFARS supplementation of FAR 17.204(e) explicitly interprets the text of the FAR for DOD personnel.

Share this post


Link to post
Share on other sites

Or maybe, the DFARS supplementation adds to the FAR text for DOD personnel by addressing a matter which the FAR does not address -- they could have put their rule in 216.505 with the same effect of directing DOD personnel to limit a contract's ordering period to five years.  But wherever they put it, the FAR text's meaning is unchanged by an agency's supplementation.

Share this post


Link to post
Share on other sites
13 hours ago, ji20874 said:

But wherever they put it, the FAR text's meaning is unchanged by an agency's supplementation.

Come on, ji. Why make such needlessly broad assertions?

A FAR text's "meaning" can be changed for an agency by that agency's supp. That's one of the reasons for issuing a supp, to deviate from the FAR.

Share this post


Link to post
Share on other sites
On 8/3/2018 at 12:30 AM, Vern Edwards said:

A FAR text's "meaning" can be changed for an agency by the agency's supp. That's one of the reasons for issuing a supp, to deviate from the FAR.

201.301 Policy.

(a)(1) DoD implementation and supplementation of the FAR is issued in the Defense Federal Acquisition Regulation Supplement (DFARS) under authorization and subject to the authority, direction, and control of the Secretary of Defense. The DFARS contains—

(i) Requirements of law;

(ii) DoD-wide policies;

(iii) Delegations of FAR authorities;

(iv) Deviations from FAR requirements; and

(v) Policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors.

Share this post


Link to post
Share on other sites
On 8/2/2018 at 9:19 AM, ji20874 said:

Everything in FAR Subpart 17.2 is written for options that purchase supplies or servicesNothing in FAR Subpart 17.2 is written for options extending the ordering period of task and delivery order contracts.  

On 8/2/2018 at 6:26 PM, ji20874 said:

But wherever they put it, the FAR text's meaning is unchanged by an agency's supplementation.

What can be asserted without evidence can be dismissed without evidence.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
Sign in to follow this  

×