Is this contract closed?

[old51C]

When is a contract closed?

Basic facts: DoD SAP FFP GSA buy for handheld radios. Delivery is received. Contractor invoice is paid in full. Is this contract closed?

If the requiring activity realizes they should have ordered an accessory item they missed, assuming it is in scope of the original requirement and was simply an oversight, can a mod be done to add the overlooked accessory? For the sake of simplicity, let's say it is an extra battery for a handheld radio. The radio was the initial purchase. 

Does the word SHOULD below open the door to do the mod? If yes or no, any precedent (GAO maybe) or other reference? (I checked DFARS and AFARS) 

FAR "4.804-1 Closeout by the office administering the contract.

(a) Except as provided in paragraph (c) of this section, time standards for closing out contract files are as follows:

(1) Files for contracts using simplified acquisition procedures should be considered closed when the contracting officer receives evidence of receipt of property and final payment, unless otherwise specified by agency regulations."

This general topic has been discussed here previously, but my recollection is that discussion revolved around a service contract.

THANKS!

[ji20874]

FAR 4.804 closeout is wholly irrelevant to your situation.

Contract closeout under FAR 4.804 is an administrative procedure for a government contracting office -- the office's closeout has zero effect on the rights and obligations of either of the parties to the contract.

If you want to modify the contract to correct an error, talk to the contractor and do it.  If you want to modify the contract to buy a battery, talk to the contractor and do it.  

But FAR 4.804 closeout is wholly irrelevant to your situation.

[Retreadfed]

5 hours ago, old51C said:

When is a contract closed?

The more important question is what are the rights and obligations of the parties once a contract is closed?  Assume the contract is closed.  Would that prevent you from doing what you indicate you want to do in this case?

[Don Mansfield]

@old51C,

To add to what ji wrote--FAR 4.804 pertains to the closeout of contract files (like the title says). 

[Neil Roberts]

7 hours ago, old51C said:

If the requiring activity realizes they should have ordered an accessory item they missed, assuming it is in scope of the original requirement and was simply an oversight, can a mod be done to add the overlooked accessory? For the sake of simplicity, let's say it is an extra battery for a handheld radio.

I think there are other considerations that should come to mind other than is the contract "closed." I hope you would have thought about whether it should be a new procurement considering the value of the item and whether it is a justified mandatory source or there could be (or is it worth) competition. What about the impact on the payment system since the invoice was already submitted? Could it be done just as easily with a new procurement, etc. Maybe you did give these some thought. So, if the agency initially ordered 6 army designed tanks and forgot to order a spare machine gun turret and it cost $100,000, would you just be asking about "reopening" a contract for 6 tanks that were already delivered? Just a comment. No need for you to respond. I do see that you are a new poster.   

[formerfed]

Quote

Basic facts: DoD SAP FFP GSA buy for handheld radios. Delivery is received. Contractor invoice is paid in full.

I assume “GSA buy” means you placed an order under a GSA FSS contract.  If so all you need to do is just do a modification to the existing order or place a new order including a note in your file the accessory items were inadvertently omitted.  The only glitch might be if the accessory items aren’t on the GSA contract or other schedule holders are able to supply the same or similar items.  

[joel hoffman]

Gosh, how hard can it be to buy extra batteries for specific brand of handheld radio(s) off the GSA schedule even if you have to initiate another purchase?

Reminds me of the time that my Corps of Engineers remote Resident Office secretary (Marie) required our concrete testing lab boys to drive to the local town in a government pickup truck (we were located outside a small city in Mississippi) and get three quotes for three magic markers to mark concrete test cylinders.

They drove back to our office with three quotes and reported that the lowest price was $.59 each at the local Walmart. Marie called Walmart and got a nickel each, discount. Then, she sent the guys back to Walmart with a Standard Form SF44  to purchase them.

The average internal cost of each SF 44 transaction to the government was something like $30-$70 in labor costs at the time (1983). That was in addition to the time and cost of the two trips to town and back and postage. We had to overnight mail the paperwork to our District office for processing.and payment.

The District Office mailed a check to Walmart for payment…

I still remember how ridiculous that was. There are more Marie purchasing stories… 🙃

[GABE]

On 12/21/2023 at 11:18 AM, old51C said:

When is a contract closed?

Basic facts: DoD SAP FFP GSA buy for handheld radios. Delivery is received. Contractor invoice is paid in full. Is this contract closed?

If the requiring activity realizes they should have ordered an accessory item they missed, assuming it is in scope of the original requirement and was simply an oversight, can a mod be done to add the overlooked accessory? For the sake of simplicity, let's say it is an extra battery for a handheld radio. The radio was the initial purchase. 

Does the word SHOULD below open the door to do the mod? If yes or no, any precedent (GAO maybe) or other reference? (I checked DFARS and AFARS) 

FAR "4.804-1 Closeout by the office administering the contract.

(a) Except as provided in paragraph (c) of this section, time standards for closing out contract files are as follows:

(1) Files for contracts using simplified acquisition procedures should be considered closed when the contracting officer receives evidence of receipt of property and final payment, unless otherwise specified by agency regulations."

This general topic has been discussed here previously, but my recollection is that discussion revolved around a service contract.

THANKS!

Contract close out is not applicable. Mod the DO to include batteries. Keep it simple. 

[GABE]

18 hours ago, joel hoffman said:

Gosh, how hard can it be to buy extra batteries for specific brand of handheld radio(s) off the GSA schedule even if you have to initiate another purchase?

Reminds me of the time that my Corps of Engineers remote Resident Office secretary (Marie) required our concrete testing lab boys to drive to the local town in a government pickup truck (we were located outside a small city in Mississippi) and get three quotes for three magic markers to mark concrete test cylinders.

They drove back to our office with three quotes and reported that the lowest price was $.59 each at the local Walmart. Marie called Walmart and got a nickel each, discount. Then, she sent the guys back to Walmart with a Standard Form SF44  to purchase them.

The average internal cost of each SF 44 transaction to the government was something like $30-$70 in labor costs at the time (1983). That was in addition to the time and cost of the two trips to town and back and postage. We had to overnight mail the paperwork to our District office for processing.and payment.

The District Office mailed a check to Walmart for payment…

I still remember how ridiculous that was. There are more Marie purchasing stories… 🙃

What’s more ridiculous? Marie or the KOs pacifying Marie? 😂😂

[joel hoffman]

3 hours ago, GABE said:

What’s more ridiculous? Marie or the KOs pacifying Marie? 😂😂

An SF44 was the only mechanism available back in the early 1980’s then for small, local purchases by field offices. The lab needed the markers that day in order to identify fresh concrete cylinders for later testing . The KO’s at the District Office didn’t know what Marie required of the lab boys that day. The field office in Mississippi was about 280 miles from the Mobile, AL District Office. Needless to say, the KO’s had more important duties…

I was never required to get three quotes for small supplies or materials from local lumber yards for small projects in my other offices.

[C Culham]

On 12/21/2023 at 8:18 AM, old51C said:

DoD SAP FFP GSA buy for handheld radios. Delivery is received. Contractor invoice is paid in full.

 

On 12/21/2023 at 1:30 PM, ji20874 said:

If you want to modify the contract to correct an error, talk to the contractor and do it.  If you want to modify the contract to buy a battery, talk to the contractor and do it.  

 

On 12/21/2023 at 2:05 PM, Retreadfed said:

Would that prevent you from doing what you indicate you want to do in this case?

 

On 12/21/2023 at 5:54 PM, formerfed said:

If so all you need to do is just do a modification to the existing order or place a new order including a note in your file the accessory items were inadvertently omitted.

 

On 12/21/2023 at 8:50 PM, joel hoffman said:

Gosh, how hard can it be to buy extra batteries for specific brand of handheld radio(s) off the GSA schedule even if you have to initiate another purchase?

 

16 hours ago, GABE said:

Mod the DO to include batteries.

I have mulled over the OP's situation and the responses.  I do not disagree with the advice provided but it would seem that an appropriate reference is lacking.  The OP can satisfy his/her dilemma by either doing a modification to the GSA order, or by doing a new GSA order if the batteries are in fact on GSA.  For either the modification or new order it would seem that the OP should consider FAR 8.405-6 when moving forward with the modification or new order.  I note this as it would seem that based on the basic principles of competition as required by FAR 8.4 that either the modification or a new order would be considered limiting sources.

[joel hoffman]

The last time @old51C signed in to visit was when they posted the question. So, how many radios are we talking about 1 or ?? Radios?

Upon Checking on the Internet for prices of handheld radios batteries, they aren’t very expensive. Say $23-$43, for example…

Prices on GSA advantage are also relatively reasonable.

[C Culham]

3 hours ago, joel hoffman said:

The last time @old51C signed in to visit was when they posted the question. So, how many radios are we talking about 1 or ?? Radios?

Upon Checking on the Internet for prices of handheld radios batteries, they aren’t very expensive. Say $23-$43, for example…

Prices on GSA advantage are also relatively reasonable.

Remember the OP did state "let's say".  Or in other words facts could help but they aren't forthcoming.  Thread should be closed.

[joel hoffman]

18 hours ago, C Culham said:

Remember the OP did state "let's say".  Or in other words facts could help but they aren't forthcoming.  Thread should be closed.

Yes, I agree. Plus, one can purchase batteries for handheld radios “everywhere”, cheaply.

This is probably not a good “let’s say” example of a quandary. 

[old51C]

Dang Ya'll, its Christmas time! I took a little break.  Please know, I am not new to the forum, but was gone for a long time... hence new ID.

All of the feedback is appreciated. It is confirmational to my own understanding and beliefs on the matter. However, the supporting contracting office disagreed and mulled over an in scope determination for three months after the initial GSA order was awarded.  The KO would not make the call independently and was, "waiting on legal." After three months, the requiring activity acquiesced to just make new award (GSA order) because they claimed the contract was closed. Few comments in response to the feedback.

ji20874 & Don - I agree. FAR 4.804 is about files. Contracting office did not.

Neil- All of the considerations mentioned where discussed. Ther was nothing preventing a modification. 

Joel & Gabe - How hard can it be? Should not be hard at all. But they made it really hard. The mod was the simplest way, IMHO. They couldn't get there. 

C Culham - The requiring activity identified the missing items during tech evaluation on 26 Sep 23. Award of the basic radio occurred at EofFY because there was "no time to resolicit." In the new FY, the contracting office didn't want to do the mod, but wanted another competition- the RA did not. FAR 8.405-6 is where their argument originated and why they need an in scope determination to do the mod. There was no material difference between the contract and requested modification: the purchase was ~ $500K, the mod was ~ $80K ; the items were in the additional accessories list that accompanied the radios. The government informed potential vendors of the possibility of changes in the solicitation and order through the inclusion of FAR Clause 52.243-1 Changes Fixed Price. They could have done a mod- but chose the more difficult (albeit slightly) path of doing a second order.

One of you noticed I asked for a reference to the question of "when is a contract closed?" None was provided. I don't think there really is one. I think that is because the answer is simple: when the contracting officer (KO) closes it. The processes, systems, and forms may vary across our government, and complexity varies based on the contract; but at the end of the day, until the KO closes the contract, it isn't closed.
   

[Retreadfed]

1 hour ago, old51C said:

One of you noticed I asked for a reference to the question of "when is a contract closed?"

What do you mean by "closed"?  Theoretically, in some circumstances rights and obligations of the parties continue forever.  For example, see FAR 52.246-2(k)(l).

[old51C]

Retreadfed- By closed, i mean completion of the administrative actions necessary to end the contract after receiving evidence of its physical completion. 

[C Culham]

20 hours ago, old51C said:

Dang Ya'll

Thank you for coming back!

20 hours ago, old51C said:

C Culham

If I were the CO I would have required a new procurement.  My only decision point would be whether I would use FAR 8.405-6 or FAR 13.106-1(b).  Done, no legal, no hand wringing a fix for a RA screw up.

The light bulb went on for the RA.  So sad too bad, as I would conclude the scope was radios with no intention stated in a requisition and the ensuing order that accessories "might" be needed.  It was just buying radios.   The basic rule (emphasis added) -

"Evidence of a material difference is found by reviewing the circumstances attending the procurement that originally was conducted, examining any changes in the type of work, performance period, or costs between the contract as awarded and as modified, and considering whether the original solicitation adequately advised offerors of the potential for the type of work contemplated by the modification." 

Reference - Chase Supply, Inc. B-411528.2, B-411529.2: Dec 7, 2015  (pdf) found at the following link with many other decisions regarding scope.  https://www.wifcon.com/pd6_001.htm

The inclusion of a 52.243-1 is a red herring.   GSA FSS contracts typically contain a changes statement pursuant to FAR Clause 52.212-4 which I will go out on a limb and say was in the GSA FSS that was used.   Moving from one changes clause to another does not signify anything other that on one hand the change needs to be by agreement of both parties or a unilateral right of the government.   Adding 52.243-1 also seems inconsistent with both GSA FSS and a otherwise commercial product buy.  To fix the bad planning and requisitioning on the RA's part a new procurment is the fix and I would suggest a candid and truthful statement to the file would have adequately covered the matter.  Done, no legal no hand wringing and no trying to appease the RA for their error.

20 hours ago, old51C said:

when is a contract closed?"

Yes, my response was not complete with regard to this matter.   Taking the easy way out by providing this reference to a thread I recalled.  It might help you do further research and thinking about "closed".

 

[here_2_help]

16 hours ago, C Culham said:

Yes, my response was not complete with regard to this matter.   Taking the easy way out by providing this reference to a thread I recalled.  It might help you do further research and thinking about "closed".

 

Dang, but that was a helpful thread! I miss Vern's input so much ... and trust that he's doing well (physically) these days.

[Retreadfed]

18 hours ago, old51C said:

completion of the administrative actions necessary to end the contract

I'm sorry if this seems repetitive, but I don't know what you mean by end.  By that do you mean the ending of all rights and obligations of the parties under the contract?  If so, I again point out the example I gave of the standard inspection clause where there is no defined end point for the rights and obligation listed in subsection (k) and (l).

[ji20874]

Contract file closeout under FAR 4.804 is an administrative procedure for a government contracting office -- the office's closeout has zero effect on the rights and obligations of either of the parties to the contract.  All rights and obligations that existed before closeout still exist after closeout.

22 hours ago, old51C said:

By closed, i mean completion of the administrative actions necessary to end the contract...

That is not what closeout in FAR 4.804 means.  Would it work better to say closeout in FAR 4.804 means completion of administrative actions to make sure the contract file is ready to move from active management to retirement?

[GABE]

On 12/23/2023 at 9:20 AM, C Culham said:

 

 

 

 

 

I have mulled over the OP's situation and the responses.  I do not disagree with the advice provided but it would seem that an appropriate reference is lacking.  The OP can satisfy his/her dilemma by either doing a modification to the GSA order, or by doing a new GSA order if the batteries are in fact on GSA.  For either the modification or new order it would seem that the OP should consider FAR 8.405-6 when moving forward with the modification or new order.  I note this as it would seem that based on the basic principles of competition as required by FAR 8.4 that either the modification or a new order would be considered limiting sources.

Some great points, however, I would doubt a limiting source justification would apply, due to the perceived acquisition amount.

[C Culham]

13 hours ago, GABE said:

Some great points, however, I would doubt a limiting source justification would apply, due to the perceived acquisition amount.

 

On 12/27/2023 at 8:42 AM, old51C said:

the mod was ~ $80K

Who knows without further details but it would seem FAR 8.405-6 (b) might be the best bet.  (a)(1)(C) looks viable too based on the known facts.  Doubt is ever in existence in Fedeal contracting - it just depends.

[old51C]

Sorry if i intimated the RA was afoul here. We were not. The accessories were listed in an attachment to the need statement (see attached spreadsheet for a list of needed accessories) provided by the RA.  The attachment was left out of the solicitation. 

I appreciate everyone's input.  Happy New Year.

[C Culham]

19 hours ago, old51C said:

Sorry if i intimated the RA was afoul here.

With the clarification a thought occurred to me that I believe would be beneficial with regard to Beginners Forum.   Especially noted as in some cases questions are posed by other than a procurement official, say a contracting officers representative or another individual wondering why procurment did not do such and such.

The thought.   Once the RA's (Requesting Activiity) requisition goes to the acquisition office it makes good business sense that the RA's efforts do not stop there.   The RA should be initmate with the resulting solicitation, evaluation and award no matter how simple to sophisticated the procurment is.  A shared effort in my view by both the RA and procurment office.   The basic example - here is what was requested by you (RA) and here is what we (procurement office) are doing to get it for you (RA).   As boring as it may seem a read of the Federal Acquisition Regulation (FAR) 1.102-1 through 5 is the reference.

It could be a concept that is known and practiced and this one just missed the mark for some reason, but offered as a thought all the same.

Yes, Happy New Year!