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4 hours ago, Retreadfed said:

Delayn, what is being acquired?  If it is services, are the severable or non-severable?

The services are non-severable.  The extension was requested since the Government caused delays in completion.

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So, the extension is only a part of an equitable adjustment under the terms of one of the clauses in the contract?  If a contract clause allows for an extension of the period of performance as part of an equitable adjustment, then you may grant an extension of the period of performance as part of an equitable adjustment.  That particular clause is the authority for the extension of the period of performance.

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49 minutes ago, ji20874 said:

So, the extension is only a part of an equitable adjustment under the terms of one of the clauses in the contract?  If a contract clause allows for an extension of the period of performance as part of an equitable adjustment, then you may grant an extension of the period of performance as part of an equitable adjustment.  That particular clause is the authority for the extension of the period of performance.

Thank you

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Here is a little bit more background to my initial question:

A CPFF completion TO was awarded with O&M funds for one year.  COR requests a POP extension for 6 additional months at no additional cost to the Gov due to Gov delays and weather issues.  The COR says that, since the TO was completion, the contractor is required to complete the work.
Scenario 1 - The POP extension is requested right before the TO POP expires at the end of the year.  

Scenario 2 - The POP extension is requested right after the TO award.

Leadership says that the first scenario is possible but the second one is lack of planning and would essentially be a multi-year contract. 

Assume that the TO was awarded in Aug 1 with an initial POP of Aug 1 to Jul 31.  With the POP extension, the TO will cross two fiscal years.  

Are these scenarios possible in spite of having O&M funds, which have a one-year obligation? Do these scenarios fall under multi-year contract? Is leadership correct? If these scenarios are not possible, what would you do to allow the completion of the task order? 

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Guest Vern Edwards

This question was answered by ji20874. But I think you should stop listening to your COR and look into the matter yourself. Six months of government delay and weather issues in a one year contract? Give me a break. Where is the job, Puerto Rico? Houston? I think your COR is bs-ing you.

Describe those "nonseverable" services.

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Here is are a few more thoughts to go along with those already provided noting that these thoughts  are general as the specific details of a TO and contract would generate a more specific response.

  1. The Changes clause for a cost reimbursement contract (FAR 52.243-2) does not allow for a unilateral time extension.  As such an extension of time to a CPFF contract would therefore have to be done via a bilateral modification/supplemental agreement unless as noted by previous comments in this thread it is being requested under another term/condition of the contract.  Noting this I do wonder if the COR is requesting the extension via communication with the contractor or in other words is the contractor aware of the need for the extension and asked for it?

  2. On use of annual appropriations I recommend a read of the GAO Principles of Federal Appropriation Law aka “The GAO Redbook” at Volume 1, Chapter 5, Section A.2.a. regarding annual appropriations.  You can find it here - http://www.wifcon.com/bonafidecontents.htm   As you read note there is a difference between obligation of the annual appropriation and liquidation of the obligated contract funds to adjust contract value and make payments.

  3. I can not tell if you are DOD connected or not but another read about annual appropriations that may help your understanding can be found here – DoD 7000.14-R Financial Management Regulation Volume 3, CHAPTER 13 RECEIPT AND DISTRIBUTION OF BUDGETARY RESOURCES DEPARTMENTAL-LEVEL at paragraph 130202.  https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_03.pdf

Overall a no cost extension is plausible, possible even under both scenarios you have provided, but the information you are providing in support of your questions have many holes that need to be filled for a specific answer to each.

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3 minutes ago, C Culham said:

Here is are a few more thoughts to go along with those already provided noting that these thoughts  are general as the specific details of a TO and contract would generate a more specific response.

  1. The Changes clause for a cost reimbursement contract (FAR 52.243-2) does not allow for a unilateral time extension.  As such an extension of time to a CPFF contract would therefore have to be done via a bilateral modification/supplemental agreement unless as noted by previous comments in this thread it is being requested under another term/condition of the contract.  Noting this I do wonder if the COR is requesting the extension via communication with the contractor or in other words is the contractor aware of the need for the extension and asked for it?

  2. On use of annual appropriations I recommend a read of the GAO Principles of Federal Appropriation Law aka “The GAO Redbook” at Volume 1, Chapter 5, Section A.2.a. regarding annual appropriations.  You can find it here - http://www.wifcon.com/bonafidecontents.htm   As you read note there is a difference between obligation of the annual appropriation and liquidation of the obligated contract funds to adjust contract value and make payments.

  3. I can not tell if you are DOD connected or not but another read about annual appropriations that may help your understanding can be found here – DoD 7000.14-R Financial Management Regulation Volume 3, CHAPTER 13 RECEIPT AND DISTRIBUTION OF BUDGETARY RESOURCES DEPARTMENTAL-LEVEL at paragraph 130202.  https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_03.pdf

Overall a no cost extension is plausible, possible even under both scenarios you have provided, but the information you are providing in support of your questions have many holes that need to be filled for a specific answer to each.

Thank you very much.

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Delayn,

Which clause in your contract provides for the adjustment sought by the contractor for the Government delay?  

Was there really a Government delay of 6 months?  Or has the contractor not yet spent all the money (incurred cost is still below estimated cost), so you want the contractor to continue to perform and burn the money?

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Delayn:

Describe the services; and the government and weather delays. (You may have a bona fide needs rule issue. For example, certain government or weather delays that should have been anticipated may not be authorized delays, which may preclude a PoP extension under a contract clause.)

Once these questions are answered then we might start applying rules. First, lets diagnosis the situation.

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Guest Vern Edwards

And the contractor is not entitled to an extension for just any old bad weather, but only for "unusually severe weather." See FAR 52.249-14(a). "Unusually severe weather is weather that is abnormal compared to past weather at the same location for the same time of year." See Cibinic et al., Administration of Government Contracts 5th ed., p. 495 - 96.

 

 

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