I have just received FY12 funds from another group within our agency and was asked to use our contract to execute the funds. I would like to add an additional CLIN on the base contract for a period of performance of 1 Jun 2012 - 31 May 2013. Is this possible or does it violate appropriates or contract law?
This appears to be an issue of scope creep, in that issues not originally planned for the acquisition, have come up. Since this is a Fixed Price Contract, the changes clause 52.243-1 (Alternate 1) would be of interest to your Contracting Officer. Paragraph (a) (1) allows the Contracting Officer to "make changes within the general scope of this contract in any one or more of the following (1) Description of Services to be performed." Discuss with the Contracting Officer their willingness to accomplish and sign the Determinations and Findings in accordance with FAR 1.7
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Based on the additional information provided by the specialist, it may be possible to consider this within the scope based on dollar value, similiar work accomplishment, etc? Also contact your legal counsel, as this seems precarious.
"These are funds that were above and beyond our original contractual dollars that were planned to fund items that we not originally thought of during the planning phase." (This phrase indicates that perhaps this is out of scope.)
"So it doesn't exceed the 25% ceiling where a full and open competition would have to occur." This phrase seems troubling. FAR 52.243-1 does not allow a 25% or any other % of change /increase in the scope of the contract. It is possible this addition to the scope of the contract could be "protestable"! This seems to be a slippery slope one opens up in this situation.
There is also the question of whether this additional money was 'synopsized" or publically advertised. Contracting professionals have an ethical obligation to provide transparency to the taxpaying public.
Best answer is to consider this a new procurement, synoposize, and move forward with no concerns! Conservatively, discuss with legal, the contracting officer, seek what is legal. Perhaps the D&F will work, but their is additional risk involved.