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I'm trying to find a reference in the FAR as to whether or not I can execute a period of performance (POP) extension on a Task Order (TO), when the base contract has expired.

TO POP was selected beyond the base contract completion date IAW FAR 17-204(d), however the TO has not expired and we are looking to extend the POP, but the base contract expired a few months ago. 

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Is FAR 52.216-22 in the contract?  It may give you the out or may constrain you depending on what you put in the blank in paragraph (d) and your view of whether going beyond the date in (d) is appropriate (some might consider it a scope issue).

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The base (parent) contract did not expire — it is not dead.

Perhaps you meant to say that the parent contract’s ordering period has ended?

You may (must) administer the task order. If an adjustment in an order’s period of performance is called for by one of the contract’s clauses, the you may bilaterally agree on the equitable adjustment without regard to the end of the parent contract’s ordering period.  Indeed, the end of the parent contract’s ordering period is wholly irrelevant to the post-award administration of orders properly issued under the contract.

I am assuming that you are talking about extending the performance period of an order for reasons within the scope of the order, rather than adding new and out-of-scope work to the order.

A contract does not expire until both parties have completed all obligations under it.

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On 11/17/2019 at 5:56 PM, ji20874 said:

The base (parent) contract did not expire — it is not dead.

Perhaps you meant to say that the parent contract’s ordering period has ended?

You may (must) administer the task order. If an adjustment in an order’s period of performance is called for by one of the contract’s clauses, the you may bilaterally agree on the equitable adjustment without regard to the end of the parent contract’s ordering period.  Indeed, the end of the parent contract’s ordering period is wholly irrelevant to the post-award administration of orders properly issued under the contract.

I am assuming that you are talking about extending the performance period of an order for reasons within the scope of the order, rather than adding new and out-of-scope work to the order.

A contract does not expire until both parties have completed all obligations under it.

Would your answer change if you needed to do an out-of-scope mod in this same scenario? That is the scenario I am currently facing.  Base IDIQ ordering period has ended, however an order's period of performance is still ongoing. A modification is desired to the order to add work to it, however that new work would necessitate an increase in the base award's IDIQ ceiling (as well as an extension of the ordering period). With a proper J&A, could we bilaterally amend the Base IDIQs ordering period to extend it, increase the base IDIQs ceiling, and add new work to the current order? The fact that you said the base contract is not dead, its ordering period is simply over, makes me thing that this means the base award is still available to be modified in any way it could have been modified when the ordering period was still active.

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Why not issue a new contract to the favored firm instead of modifying an old but still alive task order?

My original answer opined that you can administer a task order even after the parent IDIQ contract's ordering period has passed, even if that means adding money such as for equitable adjustments.  But, since you asked, let's talk about adding new and out-of-scope work to an old but still alive task order.  Hopefully, you are talking about work that is reasonably related to the original task order and necessary for the accomplishment of the original task order but was not contemplated at the time, rather than entirely new work. 

PERIOD OF PERFORMANCE/ORDERING PERIOD:  If it is deemed proper to modify a task order by adding additional work and raising that task order's price, you may do so by bilateral agreement.  This action will be supported by a Justification for an Exception to Fair Opportunity (JEFO), right?  In my opinion, it is not necessary to also modify the parent IDIQ contract whose ordering period has ended because you are not issuing a new order but are working under the authority of a JEFO with an existing order.  Since the task order modification will be bilateral, you will have effectively dealt with any limitation driven by the contract clause at FAR 52.216-22.

CONTRACT MAXIMUM:  If the task order modification will cause you to exceed the contract maximum, well, you are going beyond the maximum that was envisioned when the contract was awarded.  Going beyond the contract maximum because of equitable adjustment, including an equitable adjustment for a change order, is fine because this is all within the scope.  But now, we're not talking about a change order or anything else contemplated by the original contract or task order.  A J&A is usually required to go beyond the scope of a contract.  Since the JEFO and J&A have the same approval thresholds and authorities, maybe you can combine these into one justification document and one approval signature.  Since you aren't issuing a new order, I am not certain that a modification to the parent IDIQ contract is needed, but if it is, it will have to be bilateral -- so you might as well address any limitation driven by the fill-in for the contract clause at FAR 52.216-22.

Or, why not issue a new contract to the favored firm instead of modifying an old but still alive task order?  That's my first recommendation for your out-of-scope and beyond-the-contract-maximum new work.  You could have had the new contract awarded by now.

 

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Thanks for the quick response!

Awarding directly to the desired firm with a J&A on a new contract was our initial idea due to the ordering period having expired, but the COR requested we look into adding it to the current Order for administrative convenience, which I won't deny would definitely be more administratively convenient.  We are simply evaluating our options at this point and will go down the best path. I wanted to know if modifying the order was even a viable path to take.  

I had not considered that the additional work on the order may not require an extension of the ordering period. I thought that new work that is outside the scope of the order constitutes a "new procurement", and I thought it would be akin to a new order that just happens to be added as a mod to a previous order rather than its own separate order, and therefore would need an open ordering period on the base award (whereas an in-scope mod definitely would not need the ordering period extended). I suppose you could view it as a modification only and therefore would not need to extend the ordering period, however the point is somewhat moot since the base award needs modifying in any regard to increase the ceiling.

Your combination of J&A and Exception to Fair Opportunities is a good idea. Thank you.

I don't quite agree with your jestful statement that we could have had a standalone contract awarded by now. If we presume we found out about this additional requirement today, and we are deciding today if we can add it to the IDIQ or must award a standalone award with a J&A, I think we can mod the IDIQ quicker in my opinion. I still think its a fair question to ask for the administrative convenience of the whole thing (it being a multi-million dollar R&D cost-reimbursement contract that has a lot of manpower in monitoring and allocating costs to specific contracts and CLINS).

Thanks for you help!

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Im of the opinion that If you’re going to add out of scope work to an IDIQ with an active task order, so what? 

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I don't want to highjack the thread, but I am curious about clause logic in a circumstance like this.

Forgive all the background:  The Ordering clause at FAR 52.216-18 provides in part, "All delivery orders or task orders are subject to the terms and conditions of this contract.  In the event of a conflict between delivery order or task order and this contract, the contract shall control."  I've always assumed that, even when an IDIQ basic contract is completely unpriced, the Government did not have to add an otherwise-prescribed clause to the new task order solicitation (and resulting task order) even if a new clause was added to the FAR after release of the solicitation for the basic and before release of the task order solicitation.  To the extent I've thought about it, I've "grounded" this assumption (on what may be a flawed reading of) the definition of a "solicitation" is FAR Part 2.  FAR 1.108(d)(1) provides in relevant part, "Unless otherwise specified...FAR changes apply to solicitations issued on or after the effective date of the change."  FAR Part 2 provides:

Quote

"Solicitation" means any request to submit offers or quotations to the Government.  Solicitations under sealed bid procedures are called "invitations for bids."  Solicitations under negotiated procedures are called "requests for proposals."  Solicitations under simplified acquisition procedures may require submission of either a quotation or an offer.

As to "offer," Part 2 provides:

Quote

"Offer" means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract.  Responses to invitations for bids (sealed bidding) are offers called "bids" or "sealed bids"; responses to requests for proposals (negotiation) are offers called "proposals"; however, responses to requests for quotations (simplified acquisition) are "quotations," not offers.  For unsolicited proposals, see subpart 15.6.

Bottom-line:  For good or for ill, I normally treat task order solicitations as not a "solicitation" as that word is used in FAR 1.108(d)(1).  If the new effort is not within the scope of the basic contract, though, technically isn't inevitably there going to be a "solicitation" for purposes of FAR 1.108(d)(1) that may drive the need to add any new (or updated) clauses?

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That's an interesting thought and i'm not sure I have an answer for you. I agree that although a solicitation for an order may meet the definition of a "solicitation", it is within the confines of an awarded contract with set terms and conditions, so the addition of newly released clauses would not be necessary.  If adding new work to the IDIQ, then yes perhaps new clause additions must be added.

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16 hours ago, ji20874 said:

Or, why not issue a new contract to the favored firm instead of modifying an old but still alive task order?  That's my first recommendation for your out-of-scope and beyond-the-contract-maximum new work.  You could have had the new contract awarded by now.

There are strategic reasons. 

People: That's the only contract available for that particular contractor.

Time: A bilateral mod on an existing TO may take a few days, while a new TO might have a lead time of months.

Avoiding protest / legal strategy.  In some situations,  an out-of-scope mod to a TO (or other type of contract action) can't be protested, but a new contract/order could be.  If you are in a contentious litigation with a company who has declared their intent to expand their protest further (possibly to pressure the Government to take corrective action rather than wait for a decision), then this may be a good idea.  Particularly if the stop-work(s) is (are) becoming very painful.  

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4 minutes ago, General.Zhukov said:

In some situations,  an out-of-scope mod to a TO (or other type of contract action) can't be protested, but a new contract/order could be.

I'm not sure I'm following this.  Can you expand on when this would be?  I thought the GAO always has jurisdiction for protest allegations that a task order is out of scope.  See, e.g., Anteon Corp., B-293523, B-293523.2, Mar. 29, 2004, 2004 CPD ¶ 51.

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I normally treat task order solicitations as not a "solicitation"

Me, too.  FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”  A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.

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2 hours ago, Jacques said:

'm not sure I'm following this.  Can you expand on when this would be?

Ah, you are correct.  I was thinking of a new TO issued against something like an agency IDIQ, which for small $ isn't protestable; while an out of scope mod would be. This is not an area I am very familiar with.  My mistake.

The general point was that an otherwise inexplicable method of procurement sometimes makes sense if understood as a method of avoiding a protest-happy contractor.

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On ‎1‎/‎10‎/‎2020 at 8:16 AM, ji20874 said:

A fair opportunity notice is not a solicitation within the construct of the FAR,

Is a fair opportunity notice a request to submit offers or quotations to the Government?

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Is the Socratic Method overrated?  As a laxative, no; as a birth control method, yes.  As a constructive way to participate in a discussion board, maybe.

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1 hour ago, Don Mansfield said:

Is a fair opportunity notice a request to submit offers or quotations to the Government?

FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”

EXAMPLE:  FAR 42.903 says, “The contracting officer shall insert the clause at 52.242-13, Bankruptcy, in all solicitations and contracts exceeding the simplified acquisition threshold.”

I do not insert the Bankruptcy clause in fair opportunity notices, because a fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.

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@Don Mansfield, do you believe all of the language in the FAR Part 2 entry for "solicitation" forms a part of its definition?  Same question for "offer."  Alternatively, do you believe the FAR defines a "solicitation" as "any request to submit offers or quotations to the Government," and the rest of the language is surplusage?

Relatedly, can you explain to me why FAR 4.2105(a) reads the way it does?  It states:

Quote

(a) The contracting officer shall insert the provision at 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment–

(1) In all solicitations for contracts; and

(2) Under indefinite delivery contracts, in all notices of intent to place an order, or solicitations for an order ( e.g. , subpart 8.4 and 16.505).

 

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47 minutes ago, Don Mansfield said:

You're dodging the question.

No, I'm trying to be intellectual honest. 

Do I err by not including the bankruptcy clauses in fair opportunity notices over the SAT?

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38 minutes ago, ji20874 said:

No, I'm trying to be intellectual honest. 

Then you should just answer the question. Your claim was:

2 hours ago, Don Mansfield said:

A fair opportunity notice is not a solicitation within the construct of the FAR

Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO

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FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”  A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community

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On ‎1‎/‎10‎/‎2020 at 8:16 AM, ji20874 said:

A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.

Intervener....

In  the "construct" of the FAR it would seem that there is more to the matter of a notice/solicitation than just FAR 16.505(b)(1) and the definitions at FAR part 2  with specific reference to FAR 2.101(a).  FAR part 5 and 5.001 and 5.202 quickly come to mind.  Agency supplements that might apply to the construct of the FAR quickly follow.

A general statement as noted always leads to the "depends" in the world of contracting. 

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15 hours ago, ji20874 said:

FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”  A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community

Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO

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I am interested in meaningful and professional dialogue in this forum.  I have no interest in pedantry.  I have heard colleagues say that they wished there was more meaningful and professional dialogue here, and I understand -- more of them would participate here is we could move in that direction.

Here's a better formulation:

T     F     The FAR uses the word "notice" (instead of "solicitation") in the context of fair opportunity in FAR 16.505(b)(1).

I believe the answer is TRUE. 

If you disagree with me, Don, please explain why -- I might learn something.  And I'm still wondering from an earlier question you haven't answered:  Do I err by not including the bankruptcy clause in fair opportunity notices over the SAT?

 

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30 minutes ago, Ibn Battuta said:

Thus, the notice informs contractors that they may submit offers.

Because 16.505(b)(1)(iii) (A) requires it to be a "competitive basis."   the FAR states at "(A) Each order exceeding the simplified acquisition threshold shall be placed on a competitive basis in accordance with paragraph (b)(1)(iii)(B) of this section..."  (emphasis added)  

Could be that it is not a chance but an actual offering for competition?

 

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