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  1. Here is a question and some thoughts hopefully to gain a better understanding. Possible Scenario: An agency failed to exercise an option to extend the period of performance and the contract expired in January, in June the contractor and the Agency agree bilaterally to a modification to re-establish and continue originally planned work under the contract to the original option period of performance completion date of December of the year. The contract was initially award as valid contract against a Broad Agency Announcement and is for Basic Research (Budget Activity 1/2/3). Thoughts: When a competitively awarded contract is awarded using FAR part 15 solicitation procedures, and the contracting officer fails to exercise an option and allows a contract period of performance to expire such that the contract has expired either a justification in accordance with FAR part 6 is necessary or a new competition is required. Either to establish a new contract vehicle or execute a bi-lateral modification to extend/reactivate the period of performance. See Washington National Arena Limited Partnership, B-219136, OCT 22, 1985, 65 COMP.GEN. 25. [Relevant text below and credit to Vern under http://www.wifcon.com/discussion/index.php?/topic/2164-option-to-extend-the-term-not-exercised-on-time-now-what/&page=2]. Relevant text from CICA relating to a BAA (FAR 35.016) “The term 'competitive procedures' means procedures under which an executive agency enters into a contract pursuant to full and open competition. Such term also includes ….(2) the competitive selection of basic research proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of such proposals.” Here is an example where the issue was worked by DAU/Ask A Professor (https://www.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=114379). I note the response does not address the basis for the original award. My position is should the fact pattern presented in B-21913 be modified to switch the award authority the conclusion would change. In the possible scenario above should an Agency fail for any reason to exercise an option under a contract properly awarded against a BAA a bi-lateral modification to continue the original performance be agreed to by the parties then performance may continue absent the need for a FAR 6 J&A. Is such a modification an abuse of the Agency's authority and outside the regulations? Relevant Text from Washington National Arena Limited Partnership. “WE AGREE WITH TICKETCENTER THAT THIS ATTEMPT WAS IMPROPER. UPON EXPIRATION OF TICKETRON'S CONTRACT, NEITHER THE GOVERNMENT NOR TICKETRON WAS OBLIGATED BY ANY OF THE CONTRACT TERMS; TICKETRON NO LONGER WAS BOUND TO PROVIDE VISITOR RESERVATION SERVICES, AND THE GOVERNMENT NO LONGER WAS BOUND TO PAY TICKETRON COMMISSIONS FOR SUCH SERVICES. THE UNEXERCISED OPTION PROVISIONS WERE PART OF THE CONTRACT AND, THUS, NECESSARILY EXPIRED WHEN THE CONTRACTUAL RELATIONSHIP WAS TERMINATED. THUS, THE ATTEMPTED RETROACTIVE EXTENSION OF TICKETRON'S CONTRACT WAS NOT AN EXTENSION AT ALL- - THERE WAS NO CONTRACT TO EXTEND- BUT THE NONCOMPETITIVE CREATION OF A NEW CONTRACTUAL RELATIONSHIP WITH TICKETRON. UNDER CICA, AGENCIES ARE REQUIRED TO "OBTAIN FULL AND OPEN COMPETITION THROUGH THE USE OF COMPETITIVE PROCEDURES" IN PROCURING PROPERTY OR SERVICES. 41 U.S.C. SEC. 253. CERTAIN EXEMPTIONS FROM THE COMPETITION REQUIREMENT ARE LISTED, BUT IT DOES NOT APPEAR FROM THE RECORD, AND NPS DOES NOT ARGUE, THAT ANY OF THESE EXEMPTIONS WOULD APPLY TO JUSTIFY A NONCOMPETITIVE AWARD TO TICKETRON UNDER THE CIRCUMSTANCES HERE. CONSEQUENTLY, WE SUSTAIN THE PROTEST ON THE GROUND THAT NPS SHOULD HAVE CONDUCTED A COMPETITIVE PROCUREMENT FOR THESE VISITOR RESERVATION SERVICES.” Washington National Arena Limited Partnership, B-219136, OCT 22, 1985, 65 COMP.GEN. 25 (https://www.gao.gov/products/461444#mt=e-report) Hoping for a good discussion, not based on a current fact set.
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