Can and Expired Task Order be extended pursuant to 49.402-4 Procedure in lieu of termination for default?

[Civil Servant on the West Coast]

Here's the situation:

 

• Task order required contractor to produce a report (i.e., an actual deliverable) with the deadline for the deliverable set by the task orders period of performance.
• The contractor failed to meet the deadline (there is no gov't caused delays) and no official contract action was taken prior to the expiration of the task orders period of performance.
• Although the task orders period of performance has expired, the parent contract's period of performance is still open
• The contracting officer determined that although termination for default is warranted, it would be in the best interest of the government to allow the contractor to complete the work and therefore, the contracting officer would like to invoke 49.402-4 - "Procedure in Lieu of Termination for Default."  
• There is a dispute -- some are arguing that because the contracting officer did not invoke 49.402-4 procedures prior to the expiration of the task order's period of performance, it is too late to extend the period of performance via 49.402-4 (e.g., see Fluor Fed. Solutions, Inc., ASBCA No. 62343, August 9, 2022)  -- which generally held that you cannot extend a contract that has already expired).
• Others argue that the ASBCA case is not applicable because it dealt with an expired contract and not an expired task order on a contract that was otherwise still open.

Any guidance as to whether the agency can rely on 49.402-4 to reopen an expired task order will be greatly appreciated.

[Don Mansfield]

The Fluor case is inapposite. If the contractor is in default, one of the options is to extend the completion date.

Quote

It is a well-established principle in Government contract law that while the Default clause gives the Government the absolute right to terminate the contract upon failure of the contractor to make timely delivery of the procurement item, the clause permits the Contracting Officer to exercise his right to use discretion in deciding whether to immediately terminate the contract, or any part thereof, or, among other things, to allow the contractor to continue performance under a new delivery schedule. No new consideration is necessary to support what the Default clause already permits the Contracting Officer to do. It is also a principle of law that a waiver of delivery date can be inferred from the Government's behavior after the contractor fails to make delivery as promised. Acceptance of a new delivery date can be established by agreement of the parties or by acts of the Government. Here again, acceptance by the Government can be implied from the circumstances.

Free-Flow Packaging Corp., GSBCA 3992, 75-1 BCA ¶11,332

[Voyager]

@Civil Servant on the West Coast See also Vern and Krimz posts in here.