Berniecia Posted October 30, 2019 Report Share Posted October 30, 2019 With a FFP, C type contract for Ship repair, using FAR part 13 and 15, as well as DFARS 217.7100 MSRA/ABR, and a Period Of Performance and Delivery by date, the question is: How can one add growth or new work after the Period Of Performance and Delivery by date? I was told that the changes clause, 252.217-7003 would work but I do not see how any work can be added after the Period Of Performance and Delivery by date. Link to comment Share on other sites More sharing options...
Berniecia Posted October 30, 2019 Author Report Share Posted October 30, 2019 To add to my question, say the POP/Delivery date is 9/15/2015 and a contract modification to add work is 9/28/2015. Link to comment Share on other sites More sharing options...
ji20874 Posted October 30, 2019 Report Share Posted October 30, 2019 A contract does not die (or turn into a pumpkin) on the delivery date or period of performance end date. If the contractor did not deliver by the due date, then the contract is still alive, and will remain alive for as long as either party still has obligations under it. BTW, are you wanting to (1) change the work; or (2) add entirely new work? p.s. I used words like die and alive and pumpkin because tomorrow is Halloween. Link to comment Share on other sites More sharing options...
Berniecia Posted October 30, 2019 Author Report Share Posted October 30, 2019 Thank you for the info. Yes, I am aware of a contract not dying, as the contractor must fulfill the original deliverable requirements. What I am trying to get at is, if all deliverables are accepted and the POP/Deliverable date has passed, what reference/statue allows for growth or new work to be added? So, the POP is 4/20/2015 and everything is delivered/accepted that day, now the customer wants to grow the original work or add new work any amount of days past 4/20/2015. I cannot find a resource to support this. Link to comment Share on other sites More sharing options...
ji20874 Posted October 30, 2019 Report Share Posted October 30, 2019 Sometimes, it is best to leave the dead in their graves (Happy Halloween!) If anyone had objections to a contract modification in 2015, I hope he or she would have raised the objection then. Sorta like a wedding, “Speak now, or forever hold your peace.” I recommend letting the sleeping dog lie. Rather than looking for a citation that would expressly allow for that modification, it might be better to look for a prohibition. If there was no prohibition, and it made sound business sense at the time, it should been seen as permissible, right? See FAR 1.102-4(e). Link to comment Share on other sites More sharing options...
joel hoffman Posted October 30, 2019 Report Share Posted October 30, 2019 This is For something that occurred in 2015? Surely not for adding work NOW in 2019, right? Link to comment Share on other sites More sharing options...
Retreadfed Posted October 30, 2019 Report Share Posted October 30, 2019 Berniecia, you said this was for ship repair. Was the delivery date predicated on the ship's availability? Did the original contract have an over and above clause in it? If so, is the new work, over and above work that would be done in a new availability? Link to comment Share on other sites More sharing options...
Berniecia Posted October 30, 2019 Author Report Share Posted October 30, 2019 ALCON, Thank you for your input into my question. It's nice to see that fellow Contracting Officers participate. And yes, it is for two 2019 actions. Besides a possible violation into Contracting principles, and skirting competition, I just want to know for my own learning/growth, if what I offered can happen. Oh, one of the contracts is a FFP C type contract while the other is a FFP D type, multi-award, contract using Fair Opportunity. Again, thank you all. Link to comment Share on other sites More sharing options...
Berniecia Posted October 30, 2019 Author Report Share Posted October 30, 2019 2 minutes ago, Retreadfed said: Berniecia, you said this was for ship repair. Was the delivery date predicated on the ship's availability? Did the original contract have an over and above clause in it? If so, is the new work, over and above work that would be done in a new availability? Not predicated on the ship's availability, No over and above clause. Link to comment Share on other sites More sharing options...
ji20874 Posted October 30, 2019 Report Share Posted October 30, 2019 Bernicia, We need to be careful not to mix different issues. Scope of the competition and skirting competition are real concerns, whether it was a 2015 order or a 2019 order -- I thought the question was about doing a modification after the period of performance has ended. I am unaware of any prohibition on contract modifications after the period of performance has ended -- I've even done some myself. Link to comment Share on other sites More sharing options...
joel hoffman Posted October 30, 2019 Report Share Posted October 30, 2019 Deleted. Link to comment Share on other sites More sharing options...
Berniecia Posted October 31, 2019 Author Report Share Posted October 31, 2019 16 hours ago, ji20874 said: Bernicia, We need to be careful not to mix different issues. Scope of the competition and skirting competition are real concerns, whether it was a 2015 order or a 2019 order -- I thought the question was about doing a modification after the period of performance has ended. I am unaware of any prohibition on contract modifications after the period of performance has ended -- I've even done some myself. Ji20874, what citation, J&A, did you use for your justification? What concerns me is that once all deliverables have been received and the POP/Delivery date has passed, how can one "sole source" additional or new work to the prime vice seeking competition? I will offer two hypothetical situations: 1. Contract/Delivery date ends 9/15/XXXX. On 9/28/XXX (18 days past the POP) the customer wants more work from the prime but the work will not end until 12/1/XXXX and funding is not available so an upward obligation must be made. On 10/20/XXXX (35 days past the POP) a modification was put into contract??? 2. A one year C type contract has ended. During the year, the customer identified additional work but ran out of funding and GFE would not be available until 60 days following the POP. Modification was put into contract 45 days past the POP??? I'm just looking to learn here. IF we don't learn, then we're not growing. Link to comment Share on other sites More sharing options...
ji20874 Posted October 31, 2019 Report Share Posted October 31, 2019 Rather than looking for a citation that would expressly allow for the proposed modification, it might be better to look for a prohibition. If there is no prohibition, and it makes sound business sense, it should been seen as permissible, right? See FAR 1.102-4(e). Are we talking about the parties agreeing to modify a contract after acceptance has occurred? There is no prohibition. Somehow, and for some reason, it seems the 2015 contract is still open and has not been closed. If your agency will close that contract, you might solve the problem. Or, are we talking about circumventing competition requirements for new work? That’s an entirely different matter. If the new work really is new work (that is, is not within the scope of the 2015 contract or the competition for that contract), the proposed modification will have to comply with any applicable competition requirements. Link to comment Share on other sites More sharing options...
formerfed Posted October 31, 2019 Report Share Posted October 31, 2019 I completely agree with ji20874’s comments. As far as the second bullet on adding new work, you must comply with competition requirements as stated. You can do that as a supplemental agreement to the existing contract or do a new contract. Lots of people think a new contract is the only way to go but why do that? The existing contract, if still open, has all the terms and conditions right there. Link to comment Share on other sites More sharing options...
C Culham Posted October 31, 2019 Report Share Posted October 31, 2019 @Berniecia No intent to confuse or conflict with the advice offered by ji20874 but further thoughts with references that may help for the future on similar type issues. 1 hour ago, ji20874 said: Or, are we talking about circumventing competition requirements for new work? That’s an entirely different matter. If the new work really is new work (that is, is not within the scope of the 2015 contract or the competition for that contract), the proposed modification will have to comply with any applicable competition requirements. With regard to the reference of "scope of competition" you may want to read here http://www.wifcon.com/pd6_001.htm Determinations regarding scope of the competition are completely fact specific regarding the contract. Reading the protests and court cases listed may help understand ji20874's comment. 1 hour ago, ji20874 said: Are we talking about the parties agreeing to modify a contract after acceptance has occurred? There is no prohibition. Somehow, and for some reason, it seems the 2015 contract is still open and has not been closed. If your agency will close that contract, you might solve the problem. Here I advise caution for the future. Noting your examples of timing I agree with the above statement but there are other issues connected depending on timing. By example has the paying office closed the contract out from their perspective. Many finance systems are built on the basis of the FAR. See the imperative of the FAR for when payment closeout is to occur - FAR 4.804-3. I am noting this as there may be a point after contract completion that while modifying is not prohibited there may be other issues that prevent an easy avenue to adding the work. A full read of FAR 4.804 along with your agency supplement to FAR 4.804 may provide further insight as to when modifying is not very advantageous. Link to comment Share on other sites More sharing options...
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