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  1. Reaching back into a pool of competitive offers for a second award from that pool is permissible after the first award is terminated for default (GAO bid protest decision Maersk Line, B-410445; B-410445.2, December 29, 2014) -- this is rather commonly done. The Court of Federal Claims allowed this reach back (instead of a new competition) after the first award was terminated for convenience (Coastal Environmental Group, No. 13-71C, August 13, 2014) -- this is probably done only rarely. My contracting office is thinking of drafting a provision for use in solicitations for service contracts to put offerors on notice that we may may want to exercise this reach back flexibility (instead of a new competition) if we terminate the first awarded contract for default or convenience, or otherwise choose not to exercise an option, within 15 months of the date of the first award. One might say that we already have this flexibility even if we're silent (at least for terminations), but we have no problem with being transparent and providing a notice. I'm interested in any thoughts on this approach from the WIFCON community. Here's the draft of our provision-- AWARD OF A REPROCUREMENT CONTRACT (a) The Government intends to make one contract award resulting from this solicitation to the offeror that provides the best value to the Government. At any time within fifteen months after award of that contract (the first contract), the Government may award a reprocurement contract to another offeror (based on the evaluation conducted for award of the first contract) if the Government— (1) terminates the first contract; or (2) does not exercise a performance period option under the first contract. (b) Award without discussions. If an identification of a second-ranked offeror was made for award of the first contract, the contracting officer may rely on that ranking to select the offeror to be awarded the reprocurement contract. If a ranking of offerors was not made, the selecting authority may re-visit the evaluation results and select the best value offeror. In either case, if the period for acceptance of offers has ended and the prospective awardee does not agree to extend its offer acceptance period, another offeror may be selected. (c) Award with discussions. The contracting officer may establish a competitive range of the most highly rated proposals based on the evaluation that supported the first contract award. The procedures of FAR 15.306 and 15.307 will apply. The offeror’s final proposal revision shall specify the period for acceptance of its offer.
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