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FAR 17.206:  Evaluation of options

Comptroller General - Key Excerpts

Marshall contends that the agency should not have evaluated all of the option prices because the agency did not have a reasonable expectation that it would be able to obtain funding for these options. If all of the options were not evaluated, Marshall asserts, its proposal would have been lower in price and could have been determined to be the best value.  Where, as here, the solicitation includes a provision requiring the evaluation of options, such options must be evaluated “[e]xcept when it is determined in accordance with FAR [sect.] 17.206(b) not to be in the Government’s best interests” to exercise the options. FAR sect. 52.217-5. FAR sect. 17.206(b) provides that it may not be in the government’s best interests to evaluate options “when there is a reasonable certainty that funds will be unavailable to permit exercise of the option.”


Here, the contracting officer states that she fully intended to award the options “as future funds become available” and that there was a “reasonable likelihood” that the options would be exercised, as evidenced by a memorandum she prepared three months before award. Agency Report, Tab 4, Contracting Officer’s Determination for Use of Option, at 1; Tab 9, Contracting Officer’s Affidavit, para. 8. In support of these statements, the contracting officer explains that an additional $2 million has already been made available for options on this project, and she has provided documentation showing “remaining funding authorities and the threshold limits” available for this project. Agency Report, Tab 9, Contracting Officer’s Affidavit, para. 7; Tab 11, Request Award Construction Funds, at 1.  Marshall asserts, without support, that additional funding is “unlikely” and that, absent more definitive proof by the agency that funding is available, the contracting officer should not have evaluated option pricing. Protester’s Comments at 2. However, Marshall misconstrues the burden of proof applicable to this issue. The test is not whether a contracting officer can state with certainty that funds will be available to exercise options. Building Constr. Enters., Inc., B-294784, Dec. 20, 2004, 2004 CPD para. 251 at 2; Contractors NW, Inc., supra, at 4. Rather, FAR sect. 17.206(b) provides that options should be evaluated unless there is “reasonable certainty” that funds will not be available. Charles J. Merlo, Inc., B-277384, July 31, 1997, 97-2 CPD para. 39 at 3-4. The record does not show that there was “reasonable certainty” that funding is not available. Thus, we cannot find unreasonable the agency’s determination to evaluate option pricing in this case.  (Marshall Company, Ltd., B-311196, April 23, 2008) (pdf)

Here, the contracting officer states that he intended to exercise options at the time of contract award if bid prices were low enough to permit him to do so. However, because the bid prices were not low enough to permit the contracting officer to exercise options at contract award, the contracting officer states that Fort Riley is "attempting to secure additional funds so that options could be awarded" and that he anticipated, based upon his experience, that additional funds might become available, although that is not certain. Affidavit of Contracting Officer at 2. Although the contracting officer cannot state with certainty that funds will be available to exercise options, this is not the test. FAR 17.206(b) does not require the agency to be clairvoyant in forecasting the availability of option quantity funding. Charles J. Merlo, Inc. , B-277384, July 31, 1997, 97-2 CPD 39 at 3-4. Absent a showing that there is reasonable certainty that funds will not be available, an agency should evaluate option prices, where the solicitation provides for their evaluation. See Federal Contracting, Inc. , B-250304.2, June 23, 1993, 93-1 CPD 484 at 6. The record here shows that the agency is continuing to seek funds to permit the exercise of the options and that the contracting officer does not know with reasonable certainty that funds will be unavailable to permit the exercise of the options. Accordingly, we find that the agency reasonably evaluated option prices, as was provided for by the IFB. (Building Construction Enterprises, Inc., B-294784, December 20, 2004) (pdf)


Where, as here, the IFB properly includes a provision requiring the evaluation of options, such options must be evaluated “[e]xcept when it is determined in accordance with [FAR §] 17.206(b) not to be in the Government’s best interests” to exercise the options. FAR § 52.217-5. As noted above, the agency received confirmation the day after bid opening that an additional $2.2 million would likely be appropriated, which would cover the cost of the entire project. Given this expectation of additional funding, the agency determination to make award based on evaluation of base and optional items was reasonable. The agency need not have all funds currently available for optional items in order to evaluate them for award. See Charles J. Merlo, Inc., B-277384, July 31, 1997, 97-2 CPD ¶ 39 at 3-4; Federal Contracting, Inc., supra, at 5-6. Although CNI points to a series of pre‑award communications between agency personnel discussing the fact that only $1.6 million was currently available to fund the project (which is less than even the base bid), these communications reflect only the agency’s discussion about how the basic contract could be funded and do not demonstrate that future funding was not going to be available, as anticipated.  (Contractors Northwest, Inc., B-293050, December 19, 2003)  (pdf)


Thus, a determination not to evaluate options, made after receipt of bids, does not preclude an award on the basis of base bid items and, by implication, does not require the receipt of new bids. Foley Co., B-245536, Jan. 9, 1992, 92-1 CPD para. 47 at 3; see also Occu-Health, Inc., B-270228.3, Apr. 3, 1996, 96-1 CPD para. 196 at 4.  (ACC Construction Company, Inc., B-289167, January 15, 2002)


We find that Agriculture could not reasonably determine that it was in the government's best interests to evaluate both of these alternate options to determine the total evaluated price. In this regard, as noted above, Agriculture knew it would not exercise both options. Given that Kruger's bid price, after application of the SDB evaluation preference, would be low, regardless of which option is evaluated and exercised, we conclude that only Kruger's bid could be determined most advantageous to the government, considering price and price-related factors.  (Kruger Construction, Inc., B-286960, March 15, 2001)

Comptroller General - Listing of Decisions

For the Government For the Protester
Marshall Company, Ltd., B-311196, April 23, 2008 (pdf)  
Building Construction Enterprises, Inc., B-294784, December 20, 2004 (pdf) Kruger Construction, Inc., B-286960, March 15, 2001
Contractors Northwest, Inc., B-293050, December 19, 2003 (pdf)  
ACC Construction Company, Inc., B-289167, January 15, 2002  

 

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