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Is there a provision or clause in the FAR that prescribes the limits on no cost extensions?  I've scanned the provisions and clauses and could not find anything specific.  I'm not referring to 52.217-8 or 52.217-9 

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Can you be more specific as to what kind of extension you are looking at and why the extension is requested and/or necessary?  There are clauses that provide for excusable but not compensable time extensions in lieu of default. And the parties could bilaterally agree to no cost time extensions for various reasons that are mutually beneficial. But I don’t understand the context of your question. 

 

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On 2/25/2021 at 11:48 AM, Paula C said:

Is there a provision or clause in the FAR that prescribes the limits on no cost extensions?  I've scanned the provisions and clauses and could not find anything specific.  I'm not referring to 52.217-8 or 52.217-9 

The phrases "no cost extension" and "no cost time extension" do not appear anywhere within the FAR System, which includes the FAR and the agency FAR supplements. However, the FAR System contains various general references to time extensions in various contexts. For example, DFARS 204.7501(b) says, in part, "Contracting officers shall not exercise an option period or extend the period of performance on a contract, task order, or delivery order, unless the contract has a current (i.e., not more than 3 years old) CMMC certificate at the level required by the contract, task order, or delivery order."

The phrases "no cost extension" and "no cost time extension" do not appear in the GAO Red Book.

One or the other of the two phrases appears in 64 board of contract appeals decisions, 6 Court of Federal Claims decisions, 2 Federal Circuit decisions, and three GAO protest decisions.

Cibinic, Nash, and Nagle discuss time extensions generally in Administration of Government Contracts, 5th ed., pages 514-521. They discuss the measurement of time extensions in pages 518-519.

Cibinic and Nash discuss time extensions generally in 35 articles published in The Nash & Cibinic Report between January 1988 and January 2020.

I do not know of any official limitation that applies specifically to "no cost extensions" or "no cost time extensions."

Do you have another question?

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Joel Hoffman the question I had specifically was: 

“What clauses in our contracts/the IDIQ allows for no cost extensions/extensions?”

The IDIQ they are referring to is the HHS PSC IDIQ. I Found no references to no cost extensions in this document so was asking in general.

Vern Edwards, just what I thought, so it’s nice to get your input.


Many thanks to you both.

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This was the question PaulaC asked in the first post;

On 2/25/2021 at 11:48 AM, Paula C said:

Is there a provision or clause in the FAR that prescribes the limits on no cost extensions?

It now appears that PaulaC thinks she asked this question:

1 hour ago, PaulaC said:

Joel Hoffman the question I had specifically was: “What clauses in our contracts/the IDIQ allows for no cost extensions/extensions?”

Those are different questions.

In answer to PaulaC's second question: FAR makes no mention of "no cost extensions," so there is no FAR clause that expressly allows for "no cost extensions." But the common law and several FAR clauses provide legal bases for granting a contractor a time extension at no additional cost to the government. I don't know whether any of the FAR clauses are in your IDIQ contract.

I have long thought that skill in the construction and transmission of interrogative sentences (questions) is at the heart of much professional contracting work. For instance, I think that the work of performing cost and price analysis and of proposal evaluation are largely matters of constructing good questions and question transmissions. Construction and transmission of good questions is like target shooting. The right sight picture (sight alignment) and the right trigger squeeze are the keys to hitting the target. The right words, the right sentence construction, and proper question transmission are the keys to getting the information you want.

If I have learned anything at Wifcon over the years, it is that constructing good questions and question transmission messages is something that many of us don't take seriously enough and don't do well. Constructing good questions and transmissions is an essential part of our professional art---essential to requirements analysis, source selection planning, preparation for contract negotiations, and dispute resolution, among other tasks. They don't teach that art at DAU and FAI, but they should. Maybe they think we learn it in high school or college, but we don't. There are plenty of books about asking the right questions, but very few about asking them rightly. Of course, internet and other electronic communication practices have made us sloppy.

If I were younger, I would try to write a book about how to construct questions and transmit them properly. I'm not getting younger, so that's not going to happen. But maybe one of you young'uns will write that book. You'll make money if you write a good one. A lot of people know that there is a problem.

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Noting the progress of the thread so far I hope @Paula C in clarifying the original question understands that while no FAR clause provides a limit with regard to a no cost extension searching a specific contract for a term and condition that may address no cost extension should not be overlooked.   In other words @Paula C should read the contract, the entire contract as what ever it says will matter not what the FAR may or may not contain.

Noting that the thread has also reached to a discussion of entitlement three other thoughts come to mind.   

One being that there is a general tenant expressed with regard to government contracting that the government should receive consideration from a contractor for the contractors failure to meet a delivery date so "no cost extensions" can be an extended conversation. 

The second being that the governments ability to grant entitlement of extension could potentially reach into the matter of scope which, while not a stated as a specific limit in a FAR clause or even other than FAR clause/term/condition in the contract, may create an implied limit to how long a no cost extension should be.  

Third, the Bona Fide Needs Rule may also come into play and create an implied limit to how long a no cost extension should be.

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3 hours ago, PaulaC said:

The IDIQ they are referring to is the HHS PSC IDIQ. I Found no references to no cost extensions in this document so was asking in general.

 

https://optimalsolutionsgroup.com/contract-vehicles/psc-idiq/

“U.S. Department of Health and Human Services’ Program Support Center (PSC) IDIQ Contract

Contract # HHSP233201500149I

Period of Performance: 5/18/2015 – 3/15/2020 (plus an option period of 3/16/2020 – 3/15/2025)

In May 2015, the U.S. Department of Health and Human Services’ Program Support Center (PSC) awarded Optimal with an indefinite delivery/indefinite quantity (IDIQ) task order contract with a 5-year base period and a 5-year option period (Contract # HHSP233201500149I).”

My hunch is that the contract period is near expiration and they would like to extend it.

Me thinks that an extension to keep the contractor would be out of the scope of the original acquistion competition/contract scope, absent an excusable delay to performance of the services within the contract scope.

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While we're at it, we should discuss the meaning of "no cost extension" (aka, "no cost time extension"). I interpret "extension" to mean a change to a completion or delivery date in order to accommodate what might otherwise be a late completion or delivery. My understanding of "no cost" is that the contractor gets more time to complete or deliver, but not more money. The term is not indicative of the reason why the extension is at no cost.

If you read enough board of contract appeals decisions you'll see that "no cost extensions" are requested, granted, and denied for a wide variety or reasons, which can cause some uncertainty as to the nature of the transaction. There have been cases in which contractors were, in theory, entitled to both more time and more money because of a government-caused delay, but requested a "no cost extension" simply because the delay did not increase the contractor's costs. See e.g., Corbett Technology Co., Inc., ASBCA 49477, 00-1 BCA 30734 (2000):

"On 2 August 1990 appellant requested a no-cost extension of time until 15 November 1990. Appellant's practice was to request no-cost extensions if no extra costs were going to be incurred."

As a general rule, a CO does not need a contract clause in order to grant a request for a "no cost extension." But the CO must obtain consideration in return if the contractor is not contractually entitled to an extension.

 

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28 minutes ago, joel hoffman said:

Me thinks that an extension to keep the contractor would be out of the scope of the original acquistion competition/contract scope, absent an excusable delay to performance of the services within the contract scope.

Suggest treading lightly here.  I debated in responding so as to not complicate a Beginners Forum discussion thread.  Yet your comment generated these thoughts.   The extent of the multiple award (something like 125 contracts I think I read) does play into scope as well as the specific language of the contracts.   I say this as I am  intrigued by the number, the phased award effort used in the beginning and what the actual contracts may say.    Likewise, while @Paula C stated not a -8 or -9 clause matter it would seem that there is at least the potential that entitlement and/or consideration for an extension could reach to either of the clauses if in the contracts .  IF they are they play into scope as well.  As both you and Vern have pointed out the question as extended with clarification leaves much to the imagination.

 

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If the government merely wants to extend the contract, I forgot to mention: https://www.acquisition.gov/far/52.217-8 above.

We still don’t know the purpose of the intended extension. 

EDIT:  I forgot, as Carl pointed out, the OP mentioned the absence of the -8 clause. However, the -9 clause should be in the contract because it includes a five year option.

Paul’s C, what is the specific purpose of the intended time extension? 

Edited by joel hoffman
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2 hours ago, Vern Edwards said:

I have long thought that skill in the construction and transmission of interrogative sentences (questions) is at the heart of much professional contracting work. For instance, I think that the work of performing cost and price analysis and of proposal evaluation are largely matters of constructing good questions and question transmissions. Construction and transmission of good questions is like target shooting. The right sight picture (sight alignment) and the right trigger squeeze are the keys to hitting the target. The right words, the right sentence construction, and proper question transmission are the keys to getting the information you want.

If I have learned anything at Wifcon over the years, it is that constructing good questions and question transmission messages is something that many of us don't take seriously enough and don't do well. Constructing good questions and transmissions is an essential part of our professional art---essential to requirements analysis, source selection planning, preparation for contract negotiations, and dispute resolution, among other tasks. They don't teach that art at DAU and FAI, but they should. Maybe they think we learn it in high school or college, but we don't. There are plenty of books about asking the right questions, but very few about asking them rightly. Of course, internet and other electronic communication practices have made us sloppy.

Vern, I recall you and I discussing this very point over a bottle of pinot one evening in Portland. I'll repeat now what I said then, which is:

The False Statements Act compels contractors to answer questions forthrightly and honestly. We will certainly do that. However, nothing compels contractors to tell contracting officers, contract auditors, or analysts what questions to ask. And we will certainly not help you figure out what you need to know or how to get there. That's on you government folks.

And I'll add that if you ask an ambiguous question, we will feel free to interpret your question in a manner most advantageous to us. The honest response will be based on our interpretation.

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18 minutes ago, joel hoffman said:

If the government merely wants to extend the contract, I forgot to mention: https://www.acquisition.gov/far/52.217-8 above.

We still don’t know the purpose of the intended extension. 

EDIT:  I forgot, as Carl pointed out, the OP mentioned the absence of the -8 clause. However, the -9 clause should be in the contract because it includes a five year option.

By the way, "no cost extension" sometimes means at no cost to the contractor. See Jess Howard Electric Co., ASBCA 44437, 96-2 BCA 28345:

"[The CO] denied a no-cost extension and proposed a 60 day extension at a cost of 1 percent per month plus $350. [The Government] would have granted the extension for consideration, but [the Contractor] declined."

In that case the "1 percent per month plus $350" was to be consideration for the extension, which would have been a cost to the contractor.

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The topic of time extensions fills many books and includes much case law. A general question without context invites speculation and an array of responses. 

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Oh my, there are so many excellent responses and considerations. 

@joel hoffman I obviously didn't give much thought to the context when drafting the question, I'll do better in the future.  Unfortunately I do not know the specific reason for the question I think the person that asked me was just phishing for information to see if there were any limitations and while I believe I new the general answer, your responses give me pause and make me rethink that.  I know there have been many previous instances at the PSC when no cost extensions were granted to eat up funds before expiration.  This has changed over time but I think that might be one of the reasons they asked me about it.  I also think the question was more about the resulting task orders under the IDIQ then the IDIQ itself.  

I'll try to do better on future questions as @Vern Edwardsmentions in his response.

I have a great deal of respect for the folks on this website.  I've been reviewing responses for years and have a number of folks that have informed me that there are a couple of folks i.e., @Vern Edwards that are masters and when they speak you better listen.  

Many thanks for you time and responses.

 

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27 minutes ago, Paula C said:

I also think the question was more about the resulting task orders under the IDIQ then the IDIQ itself.  

For a TO/DO the plot thickens as any extension needs limitations are present in the ordering clause ( example 52-216-18) of the contract and what I will call the type of contract definitions clause of the contract.   Specific to the latter that would be 52.216-22 in hopefully 100% of the cases of an IDIQ. 

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1 hour ago, Paula C said:

Oh my, there are so many excellent responses and considerations. 

@joel hoffman I obviously didn't give much thought to the context when drafting the question, I'll do better in the future.  Unfortunately I do not know the specific reason for the question I think the person that asked me was just phishing for information to see if there were any limitations and while I believe I new the general answer, your responses give me pause and make me rethink that.  I know there have been many previous instances at the PSC when no cost extensions were granted to eat up funds before expiration.  This has changed over time but I think that might be one of the reasons they asked me about it.  I also think the question was more about the resulting task orders under the IDIQ then the IDIQ itself.  

I'll try to do better on future questions as @Vern Edwardsmentions in his response.

I have a great deal of respect for the folks on this website.  I've been reviewing responses for years and have a number of folks that have informed me that there are a couple of folks i.e., @Vern Edwards that are masters and when they speak you better listen.  

Many thanks for you time and responses.

 

O.k., What did you mean by “no cost time extension” to a task order and more specifically, “no cost extensions were granted to eat up funds before expiration”.  Were there underruns of services under the task order that the government would like to allow a time extension for the contractor to perform?

No offense intended but you are dribbling additional information that beg for full context in order to focus in on an answer.

Otherwise, if you are satisfied, please let us know. Thanks. 

 

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@joel hoffman no offense taken and sorry for dribbling.  The answer to your question is yes, there were underruns of services under the tasks orders that the government wanted to allow a time extension for the contractor to perform.  

@C Culham I don't recall ever seeing or requiring this clause (52.216-22) be included in any order under the PSC IDIQ. It certainly would have made things easier if they had included it though.

Probably opening a whole new can of worms with these responses, aren't I?

 

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"...there were underruns of services under the tasks orders that the government wanted..."

So, please help us understand what this means.  Select one:

(A) The contractor successfully completed all if the work, and there is still money on the table that we want to use for additional work.

(B) The contractor did not successfully complete all the work, and we still want it done by allowing more time but not more money.

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1 hour ago, Paula C said:

I don't recall ever seeing or requiring this clause (52.216-22) be included in any order under the PSC IDIQ. It certainly would have made things easier if they had included it though.

FAR 52.216-22 is supposed to be included in the basic IDIQ contract, and is binding on every task order in accordance with the clause at FAR 52.216-18, Ordering, which is supposed to be included in every IDIQ contract, paragraph (b), which states: "(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control."

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3 hours ago, ji20874 said:

"...there were underruns of services under the tasks orders that the government wanted..."

So, please help us understand what this means.  Select one:

(A) The contractor successfully completed all if the work, and there is still money on the table that we want to use for additional work.

(B) The contractor did not successfully complete all the work, and we still want it done by allowing more time but not more money.

@ji20874I have seen both instances. In some cases like (A) funds remained after the successful completion of all work and the Gvt wanted to use it to get additional work done; and in other cases, (B) was the case where the work had not been completed by the end of the period of performance and funds still remained so the Gvt wanted to extend the POP so the work could get it finished.  

Most, if not all of the work I supported was for nonseverable services contracts for studies where there are a lot of unknowns involved.

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2 hours ago, Vern Edwards said:

FAR 52.216-22 is supposed to be included in the basic IDIQ contract, and is binding on every task order in accordance with the clause at FAR 52.216-18, Ordering, which is supposed to be included in every IDIQ contract, paragraph (b), which states: "(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control."

Vern you are correct, this should be part of the IDIQ contract.

I'm no longer actively working with the PSC these days but I'd certainly love to review the base contract just to see if these were in fact included.  

I thought my initial question was simple and mundane enough for a yes/no response but I've learned a lot from this discussion and its never really that simple.  In the future, if I have additional questions I will endeavor to provide more context, and ask the right questions.  I greatly appreciate your insight.  I am satisfied

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Good luck to you Paula. I would like to emphasize to you to always obtain access to a base ID/IQ contract when issuing or administering an order. The Base contract applies and contains the umbrella terms and conditions that generally apply to every order. The order should not need to repeat those base terms, conditions and other general requirements.

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