FLContracts Posted June 19 Report Share Posted June 19 I'm reaching out for some guidance on a situation I'm facing as a junior contract specialist. I'm working on a procurement where we received only one bid from the incumbent contractor. The projected award date stated in the solicitation was Apr 30th, and the current contract expires on May 1st. My PCO and I are considering awarding the contract on Feb 1st but with an effective date and period of performance starting on APR 30th. Essentially, we'd be making an early award with a delayed period of performance. Management is on board with this approach, but they want us to provide a reference that allows for this type of contract action. I've searched through the FAR, DFARS, tWifcon, and my co-worker suggested checking the FMR, but I haven't been able to find any clear guidance covering this scenario. Can anyone point me in the right direction or provide insights on the appropriate regulations or procedures for executing an early award with a delayed period of performance? Any guidance would be hugely appreciated as I navigate this situations. I inserted dummy dates because color of money and funds is not an issue here. Quote Link to comment Share on other sites More sharing options...
ji20874 Posted June 19 Report Share Posted June 19 To answer your question: Will FAR 1.102(d) work for you? As an aside, it looks like you tried to do a competitive procurement, but you failed to achieve competition. I hope you inquire for the reason for the failure. As another aside, as a fellow professional, I apologize to you for your “Management.” Quote Link to comment Share on other sites More sharing options...
Retreadfed Posted June 19 Report Share Posted June 19 Isn't this what frequently happens in August and September when contracts are written to begin in October? Quote Link to comment Share on other sites More sharing options...
FLContracts Posted June 19 Author Report Share Posted June 19 I think the disconnect is that management wants an FMR citation regarding lead in and generally accepted practices. I agree that nothing seems to prohibit it, however I was hoping some rule of financial management might ease their heartburn about. If no such reference exists, I’m comfortable making another argument for it. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted June 19 Report Share Posted June 19 We (Corps of Engineers) often awarded construction contracts earlier than the allowable start of the construction period of performance, when funding availability wasn’t an issue. Quote Link to comment Share on other sites More sharing options...
formerfed Posted June 19 Report Share Posted June 19 @FLContracts If I were you and this isn’t an isolated incident with management, I would look for another job. There’s likely a lot of frustration waiting for you in the future as well as poor educational experiences. Quote Link to comment Share on other sites More sharing options...
Vern Edwards Posted June 19 Report Share Posted June 19 What are you buying, supplies or services? (It sounds like services, but I want to be sure.) If services, are they severable or nonseverable? If services, are funds presently available or will they become available in the new fiscal year? Quote Link to comment Share on other sites More sharing options...
FLContracts Posted June 19 Author Report Share Posted June 19 Hi Vern! 1. Service 2. Severable 3. Service Cost Center funds -Unlike annual appropriations, these funds do not expire at the end of the fiscal year. They are "no-year" funds that carry over from one fiscal year to the next. Quote Link to comment Share on other sites More sharing options...
C Culham Posted June 20 Report Share Posted June 20 11 hours ago, FLContracts said: Can anyone point me in the right direction or provide insights on the appropriate regulations or procedures for executing an early award with a delayed period of performance? DoD? Have you considered DFARs 215.371? 11 hours ago, FLContracts said: The projected award date stated in the solicitation was Apr 30th, Even if you can comply with 215.371 the above raises concern for me. Details count which I do not know. Yet have you given due consideration to the exact statement in the solicitation to assure yourself and PCO that using a different award date is not a material change to the solicitation? Remember a material change to the solicitation would be cause to amend. The afterthought is your use of "bid". I suspect offer or maybe quote, RFP or RFQ. Either way if stated award date would give cause to change an offerors response to award evaluation factors, it could be material. Maybe just maybe management has good cause for needing a well researched decision to go forward as you are suggesting. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted June 20 Report Share Posted June 20 The original post has been clarified that the delay in beginning performance is two months, within the same fiscal year. And the anticipated date for start of performance doesn’t change. There would be no cardinal change by early award with the same period of performance. The incumbent would be well aware of the time to perform the new contract. 22 hours ago, FLContracts said: The projected award date stated in the solicitation was Apr 30th, and the current contract expires on May 1st. My PCO and I are considering awarding the contract on Feb 1st but with an effective date and period of performance starting on APR 30th. Essentially, we'd be making an early award with a delayed period of performance. What’s the problem?? This is apparently DOD (“FMR” referenced), so DFARS 215.371-3 would be applicable when only one proposal is received. Actually, if additional data is necessary to determine reasonableness, the parties could be negotiating anyway and the early award with same start of performance can be clarified… Even if price negotiations aren’t necessary, the government could ask the proposer if there is any problem with early award but I doubt that the incumbent would have any objection. Quote Link to comment Share on other sites More sharing options...
FLContracts Posted June 20 Author Report Share Posted June 20 Thank you for pointing out DFARS 215.371. However, that provision relates to only one offer being received, which is not the core issue I'm facing here. All required one bid/offer procedures were properly followed, and price reasonableness has been established. My question centers specifically on the timing of award versus the effective start date/period of performance. The core question is whether there is any regulatory prohibition against awarding the contract 3 months prior to the planned period of performance start date, which is an unusual timeframe separation. From my research, I could not find any FAR or DFARS restrictions that would prevent making an award well in advance of the required performance start date. Management's concern around ensuring there is a solid regulatory basis for separating the award and performance dates by 3 months is understandable, as that is likely an atypical timeframe gap in most procurements. However, absent any specific FAR/DFARS prohibitions, I don't see any regulatory issues with proceeding as planned - awarding early while still starting the period of performance when the incumbent contract expires. The alternative of just holding the award for 10 weeks until closer to the performance start date is certainly an option. But if there are no downsides to awarding earlier, that may help streamline the process. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted June 20 Report Share Posted June 20 Your “management’s” concern is ridiculous. If there is no regulatory prohibition, no problem with funding, the offeror is the incumbent and DFARs already put you into an effective sole source procedure where you can negotiate/clarify, you can amend the solicitation to specify the the official start date of the period of performance far the record. Get the offeror’s concurrence before awarding… Then everything is clean. Quote Link to comment Share on other sites More sharing options...
Vern Edwards Posted June 20 Report Share Posted June 20 The OP posted yesterday, June 19, and wrote: On 6/19/2024 at 6:17 AM, FLContracts said: The projected award date stated in the solicitation was Apr 30th, and the current contract expires on May 1st. My PCO and I are considering awarding the contract on Feb 1st but with an effective date and period of performance starting on APR 30th. Essentially, we'd be making an early award with a delayed period of performance. I don't understand. This is June 2024. Is the OP talking about February, April and May of 2025? Is the OP talking about backdating an award? If I were the incumbent contractor I would be concerned about the implications of an "early" award. Might it make them obligated to comply with various new socio-economic contract clauses even if they weren't being paid for complying with them? Don't claim to know the answer unless you can cite case law. If the effective date were set far in the future, would the early "award" obligate funds? In general, what does the case law say about the implications of a contract "effective date"? (Don't say it's obvious. The phrase appears in 3,147 BCA decisions, and is at the heart of the issue in many of them.) Should the contract itself spell out the situation and agreement? How is "effective date" coordinate with other terms of a contract? Do we know the contract type? What does the junior contract specialist know about "the color of money and funds"? What's the difference between "money" and "funds"? To what does "color" refer? Why award "early"? Why not just ask the contractor to write a letter extending the acceptance period of its offer? I'm a geezer with limited vision, so please, help me understand what I have missed. I want to point out that Carl (C_Culham) is the only member to have raised questions and expressed doubts about "early" award. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted June 20 Report Share Posted June 20 Vern, the OP revised the initial post concerning the dates. The original hypothetical dates were in different fiscal years. Under the overall stated circumstances - dealing with a single proposer, under DFARS 215.371-3, not a cardinal change to the solicitation that would affect competition, same funding for the award date and start date, the government could negotiate the change in the award date with the offeror. The government could initially include a similar award date two months earlier earlier than start of performance in the same fiscal year in a solicitation, can’t they? So why can’t they amend the anticipated award date prior to award as long as the sole offeror agrees? Quote Link to comment Share on other sites More sharing options...
Vern Edwards Posted June 20 Report Share Posted June 20 22 minutes ago, joel hoffman said: So why can’t they amend the anticipated award date prior to award as long as the sole offeror agrees? Why do you ask me that? I didn't say they CAN'T do it. I'm not worried about a protest or a violation of statute or regulation. And regulations are not the only issues. Did you read my post? I wonder why they want to do it and what the implications might be. What are your responses to the issues I raised? If we are going to respond to this junior contract specialist and others, we should respond like thoughtful pros, not half-baked social media stars, popping of "analyses" based on vague scenarios. And we should teach them how to properly present a scenario. Let's teach him/her to think things through. Quote Link to comment Share on other sites More sharing options...
formerfed Posted June 20 Report Share Posted June 20 Maybe I’m not looking at this properly but it seems like a very simple issue. We are overly complicating things in my opinion. Using the OPs dates, the incumbent has a contract expiring on May 1. The OP wants to make a new award on February 1 with an effective date of April 30 [recognizing those dates might be switched]. The incumbent won’t have to comply with new contract conditions and terms early. Nor is there a cardinal change in the solicitation. Funding is non-expiring. The alternative is asking the incumbent to extend his proposal offer to April 30 if it lapses before then and delay the new contract until late April. Quote Link to comment Share on other sites More sharing options...
Vern Edwards Posted June 21 Report Share Posted June 21 On 6/19/2024 at 7:17 AM, FLContracts said: I'm reaching out for some guidance on a situation I'm facing as a junior contract specialist... Can anyone point me in the right direction or provide insights on the appropriate regulations or procedures for executing an early award with a delayed period of performance? Any guidance would be hugely appreciated as I navigate this situations. All: FLContracts did not ask whether it is legal or "okay" to award early. I don't know of any rule against awarding a contract ahead of the date on which performance is to commence. I presume that most contracts are awarded before performance is to commence. But the OP, a junior contract specialist, asked for "guidance". Their superiors seem to be unsure in this case. So they came here. We should help them think it through. My guidance is that the OP, starting out in their career, should consider all possible implications. In this case, FAR 15.206 does not seem to be a consideration. But there are others. The legal significance of the "effective date" of a contract, as indicated, perhaps, on a contract form such as SF 26, Block 3, or SF 1449, Block 3, without further contractual explanation and stipulation, are far from clear, as any scan of the case law soon reveals. BTW, SFF 1449 says Award/Effective Date. What does that mean? Are the implications of effective date the same under a fixed-price contract as under a cost-reimbursement contract or a time-and-materials contract? I may have missed it, but I don't think the OP mentioned a contract type. What kind of a service to people like FLContract are you all providing here? You're supposed to be old salts. Well, if you are, then teach them to look out for rocks and shoals. I'm as experienced as anyone here, more experienced that most. My writings have been cited more than 20 times by the Court of Federal Claims, even more in law reviews. This is my 50th year in the business, but I would hesitate before awarding a contract three months before performance is to begin. I would want to think it through and consult my lawyer, especially if my superiors told me to look into it. I would want to make sure I haven't overlooked something. FLContracts came here to learn. What have they learned from you? FAR 1.102 is not the answer to everything. I'm not sure it's the answer to much of anything. Quote Link to comment Share on other sites More sharing options...
C Culham Posted June 21 Report Share Posted June 21 2 hours ago, formerfed said: The incumbent won’t have to comply with new contract conditions and terms early. Well I would leave that to the OP to answer. As it goes we are given a sliver to build a house. 2 hours ago, formerfed said: Nor is there a cardinal change in the solicitation. Funding is non-expiring. Has the OP checked SAM.gov for views of thr solicitation? Has the OP canvassed the market to see why nobody "bid"? Regardless of any "shall" in the DFARS what else has the OP done to be confident that competition to the maximum amount practicable has been achieved? Are the OPs eyes, and yours, as open wide as GAO's? All in all I am not as confident as many. Why? Title of post - "Early award" As compared to what exactly? And "Delayed period of performance" Maybe clarified or not but I have not seen the solicitation? The opening post - "bid" suggests a casual approach to me...what is it really? RFP seems true but..???? No reference by the OP regarding the DFARS citation I provided, but now everything is cool? I will stop here as Vern posted as I was drafting and my thoughts are along the same line of thinking. My final thought. The OP wanted a thumbs up. Some gave it too quickly in my book and I would dare say sent the OP off and running with just the response hoped for! Quote Link to comment Share on other sites More sharing options...
Vern Edwards Posted June 21 Report Share Posted June 21 Just now, C Culham said: The OP wanted a thumbs up. Some gave it too quickly in my book and I would dare say sent the OP off and running with just the response hoped for! Bingo! Ditto! If being thorough is making it too complicated, I'll go for too complicated. Quote Link to comment Share on other sites More sharing options...
formerfed Posted June 21 Report Share Posted June 21 I completely agree we should help FLContracts and others to learn here. People will come here to inquire 13 hours ago, C Culham said: Well I would leave that to the OP to answer. As it goes we are given a sliver to build a house. Has the OP checked SAM.gov for views of thr solicitation? Has the OP canvassed the market to see why nobody "bid"? Regardless of any "shall" in the DFARS what else has the OP done to be confident that competition to the maximum amount practicable has been achieved? Are the OPs eyes, and yours, as open wide as GAO's? All in all I am not as confident as many. Why? Title of post - "Early award" As compared to what exactly? And "Delayed period of performance" Maybe clarified or not but I have not seen the solicitation? The opening post - "bid" suggests a casual approach to me...what is it really? RFP seems true but..???? No reference by the OP regarding the DFARS citation I provided, but now everything is cool? I will stop here as Vern posted as I was drafting and my thoughts are along the same line of thinking. My final thought. The OP wanted a thumbs up. Some gave it too quickly in my book and I would dare say sent the OP off and running with just the response hoped for! What does asking grilling questions on ensuring competition and determining price reasonableness when only one offer received have to do with FLContracts question? These kind of questions like an auditor might ask just drives people away. Quote Link to comment Share on other sites More sharing options...
Vern Edwards Posted June 21 Report Share Posted June 21 @formerfed Just now, formerfed said: I completely agree we should help FLContracts and others to learn here. Good! But did this comment provide FLContracts with guidance about early awards? On 6/19/2024 at 11:49 AM, formerfed said: @FLContracts If I were you and this isn’t an isolated incident with management, I would look for another job. There’s likely a lot of frustration waiting for you in the future as well as poor educational experiences. Maybe the management was testing FLContracts' initiative and research skills. Quote Link to comment Share on other sites More sharing options...
here_2_help Posted June 21 Report Share Posted June 21 I'm over here wondering whether the contractor's costs, incurred after award date but prior to effective date, are allowable costs? Do they meet the definition of "pre-contract cost" found in FAR 31.205? If not, what are they? Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted June 21 Report Share Posted June 21 44 minutes ago, here_2_help said: I'm over here wondering whether the contractor's costs, incurred after award date but prior to effective date, are allowable costs? Do they meet the definition of "pre-contract cost" found in FAR 31.205? If not, what are they? That’s one possibility why one would discuss the idea with the sole offeror!!! One wouldn’t simply unilaterally decide to amend the stated terms to award early without first discussing (negotiation). Quote Link to comment Share on other sites More sharing options...
Vern Edwards Posted June 22 Report Share Posted June 22 20 hours ago, joel hoffman said: That’s one possibility why one would discuss the idea with the sole offeror!!! One wouldn’t simply unilaterally decide to amend the stated terms to award early without first discussing (negotiation). Emphasis added. The OP did not express any desire to change ("amend") the terms of the solicitation. Here's what the OP said: On 6/19/2024 at 6:17 AM, FLContracts said: I'm reaching out for some guidance on a situation I'm facing as a junior contract specialist. I'm working on a procurement where we received only one bid from the incumbent contractor. The projected award date stated in the solicitation was Apr 30th, and the current contract expires on May 1st. My PCO and I are considering awarding the contract on Feb 1st but with an effective date and period of performance starting on APR 30th. Essentially, we'd be making an early award with a delayed period of performance. That's it. The OP did not say they wanted to change the contract period of performance, and solicitations do not usually commit the government to a particular award date. Award date is not necessarily the same as the performance start date. The OP did not say why they wanted to award "early". You would not need a solicitation amendment in order to award sooner than anticipated if such award would not affect the period of performance. or other contract terms. But before just going ahead and awarding earlier than anticipated and months in advance of the specified start of contract performance a CO should try to determine what if any legal and practical issues might arise, such as precontract costs, especiaily if the contract is cost-reimbursement, incentive, or T&M. That, I believe, was here_2_help's point. And "effective date" is not a simple idea. Do some research. Go to Google Scholar, select "case law", the select "Federal courts" and search for "contract effective date". You would get even more hits at Westlaw. I have not read and analyzed all the decisions, but I can see that issues have arisen that parties did not anticipate and that were not necessarily simple in nature. Look, the bottom line is that Wifcon Forum did not serve FLContract well in this case. Note that I was the first to post a response and then withdrew it, because I realized that the issue was more complicated than the OP seemed to realize and that I did not have time to deal with it properly. Those who did post quickly did not provide good guidance. Good guidance might have been: I know of no statute or regulation about awarding a contract months before performance is set to begin, but doing that may give rise to issues that are complicated, dicey, and unanticipated, and that are not necessarily resolved by the contract effective date. Identifying and resolving them requires many more facts than you have provided, e.g., contract pricing arrangement. It appears that you do not understand that. So I advise that you sit down with your lawyer, the requiring activity, and the prospective contractor and talk it over. I should have taken the time to write that. My bad. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted June 22 Report Share Posted June 22 If the government wants to “award early” and delay start of performance, which wasn’t indicated in the solicitation, it can discuss this and any implications with the sole offeror prior to award. This would be consistent with the DoD procedures for when only one offer is received. In the revised hypothetical scenario, there would be a two month delay within the same fiscal year. The OP apparently revised the scenario in the original opening post to simplify and respond to the questions over crossing fiscal years, which was described in the original scenario. Yes, the OP should consult with their legal representatives and whoever wants to award early, as well as the contractor. Quote Link to comment Share on other sites More sharing options...
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