Can we accept an available replacement for a smilar item to the discontinued item at this time? Would this be considered a modification? I know you cannot issue a modification to an expired contract. If this is not considered a modification, is it acceptable to still receive a replacement item at this time? If so, do you know which FAR/DFARS Regulations discuss this issue?
The problem as I see it, with this contract action, is the period of performance of the contract. The contract was awarded 25 Sep 2009, delivery Nov 2009; last recorded delivery 14 Apr 2011. Contractor delivered all but one item. Item was discontinued. Technical representative now wants to accept a replacement item for the item the contractor didn’t deliver over a year ago.
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A Firm Fixed Price commercial contract should have been closed out 6 months after final delivery. If delivery was incomplete in Apr 2011, the government should have agreed to a replacement item at the time of inspection and acceptance or deobligated excess funds. Has the technical representative provide any compelling reason for the year delay?
Contracting Officers (KOs) are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with terms and conditions of the contract, exercising business acumen and safeguarding the interests of the government. A KO is given some leeway in contract interpretation however due to the time laps from last delivery till now, unless there are extenuating circumstances, I would suggest closing out this contract and initiating a new acquisition for the procurement of the replacement item with current funding.
If the KO and legal office decide the replacement item can be accepted under this contract, I suggest negotiating a bi-lateral modification establishing the new technical requirements, price and delivery date.