Jump to content
The Wifcon Forums and Blogs
GMR

D&F For Going Over 5 Years for a Limited Source Justification

Recommended Posts

We are doing a Limited Source Justification (LSJ) in accordance with FAR 8.405-6(1)(i.)(C) -  In the interest of economy and efficiency, the new work is a logical follow-on to an original Federal Supply Schedule order provided that the original order was placed in accordance with the applicable Federal Supply Schedule ordering procedures. The original order or BPA must not have been previously issued under sole-source or limited-sources procedures.

Our requirement meets the above; however, our policy department is requiring that we do a Determinations and Findings for going over the 5 year limit - FAR 17.204(e) - Unless otherwise approved in accordance with agency procedures, the total of the basic and option periods shall not exceed 5 years in the case of services, and the total of the basic and option quantities shall not exceed the requirement for 5 years in the case of supplies. These limitations do not apply to information technology contracts. However, statutes applicable to various classes of contracts, for example, the Contract Labor Standards statute (see 22.1002-1), may place additional restrictions on the length of contracts.

At FAR 17.2014(a) it states, The contract shall specify limits on the purchase of additional supplies or services, or the overall duration of the term of the contract, including any extension.

The use of the LSJ will definitely take us over the 5 years (we have already used the FAR 217-8 Option to Extend Services clause for a six-month period. We've never had to do one before as I believe the authority to do the LSJ is sufficient for going over five years. Does anyone have experience in the same situation or interpret this differently?

Also, does anyone have thoughts for also having to do a D&F for going over 5 years using the FAR 217-8 clause if it takes it to 5 years and 6 months?

Thank you

Share this post


Link to post
Share on other sites

I think you mean FAR 8.405-6(a)(1)(i)(C).

Are you adding the new work by modification to an existing order?

If YES--

FAR 17.204(e) does not require a D&F.

  • Sometimes, the FAR requires a determination (such as in FAR 17.207(c) and (d)).
  • Sometimes, the FAR requires a written determination (such as in FAR 17.207(f)).
  • Sometimes, the FAR requires a D&F (but nowhere in FAR Subpart 17.2).

One errs if he or she insists that all three of the above must be in a D&F format.

If your agency procedures require a D&F for this purpose, well, there you have it.  But FAR 17.204(e) was written to be applicable when a contract is formed -- nothing in FAR 17.204(e) is intended to serve as a bar or barrier during contract administration.  For example, nothing in FAR 17.204(e) is intended to prohibit equitable adjustments under other terms in the contract when such adjustment would push the contract period beyond five years -- it would be absurd to insist that a contracting officer obtain a D&F under FAR 17.204(e) if the proper exercise of a contract clause allowing for an equitable adjustment pushed performance a week past five years. 

But sometimes we have to feed the trolls.  I believe the LSJ is all the authority you need, but for the sake of the trolls, you might consider including a single sentence in your LSJ acknowledging the new period of performance as being beyond five years and saying that approval of the LSJ constitutes approval to exceed five years.

Or, the trolls might win, and you might have to do a D&F.

If NO--

FAR 17.204(e) does not require a D&F.

  • Sometimes, the FAR requires a determination (such as in FAR 17.207(c) and (d)).
  • Sometimes, the FAR requires a written determination (such as in FAR 17.207(f)).
  • Sometimes, the FAR requires a D&F (but nowhere in FAR Subpart 17.2).

One errs if he or she insists that all three of the above must be in a D&F format.

If your agency procedures require a D&F for this purpose, well, there you have it. 

Share this post


Link to post
Share on other sites

To answer both questions:

Are you adding the new work by modification to an existing order? 

No, it will be a continuation of current services, no new work.

***********************************************************************

What is the base period of performance of the order? How many options?

The current GSA task order has had a 12-month base period and four 12-month option periods (all exercised); plus we exercised the 6 month Option to Extend  Services (52.217-8) - so the task order has been active for an overall period of performance of 5 years and 6 months. This LSJ will be for an additional 6-month period plus an optional 6-month period.  So there is a possibility to extend up to a total of 6 years and 6 months.

 

I forgot to add, sorry if this is critical, that we also follow the HHSAR - our policy department states that it is "required by HHSAR 317.204" - however, this actually refers you to FAR 17.204(e). It's only the signature level that changes with the HHSAR. Note that this IS NOT an IT contract.

HHSAR 317.204 Contracts.

(e)(1) Information technology contracts. Notwithstanding FAR 17.204(e), the 5-year limitations apply also to information technology contracts unless a longer period is authorized by statute.

(2) Requests to exceed 5-year limitation. A request to exceed the 5-year limitation specified in FAR 17.204(e) must follow guidance in FAR Part 1.7.

(3) Approval authority. All requests to exceed the 5-year limitations specified in FAR 17.204(e) must be supported with a Determination and Finding and approved by:

(i) The HCA; and

(ii) The HHS SPE.

Share this post


Link to post
Share on other sites

As a follow-up I understand the D&F question I asked was misleading. Our HHSAR requires the D&F if we have a request to exceed the 5-year limitation in FAR 17.204(e). So if FAR 17.204(e) is applicable to going over 5 years using a LSJ then I am fine in doing a D&F (per HHSAR). 

Share this post


Link to post
Share on other sites
59 minutes ago, GMR said:

Are you adding the new work by modification to an existing order? 

No, it will be a continuation of current services, no new work.

GMR,

If these are severable services  (it sure sounds like it is), then what you call a continuation of current services (your "additional 6-month period plus an optional 6-month period") is new work.

So, let me ask the question again--

Are you adding the new work by modification to an existing order? 

Based on what I am reading, I think the answer is YES.

Inasmuch as the new work is more of the same, I am doubtful that your new work really qualifies as a logical follow-on -- but that is for your review channel, HCA, and SPE to decide.

Share this post


Link to post
Share on other sites

ji20874,

I see your point. Perhaps it is better, in our circumstance, to use (1) Circumstances justifying limiting the source instead of a logical follow-on for new work. Provided we thoroughly document the justification. These are severable services but our predicament is that we will be re-competing this effort under a newly established Multiple Award IDIQ mid 2019 and do not want to re-compete it for a six month period and then turn around and re-compete it again. It makes more sense to have the current contractor continue the work. Plus they will need to transition twice.  This would cause more administrative costs to the Government. Perhaps it is a mixture of the above and for economy and efficiency (although no new work is being done).

Thank you for your assistance. It appears I must feed the trolls.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×
×
  • Create New...