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  • Question

    Can I award the sole source "bridge" for continuation of services from a CPAF to CPFF? or will it have to remain a CPAF?


    Answer

    1.  Awarding a "bridge" contract on a sole source basis can be accomplished if doing so can be justified pursuant to the competition regulations in FAR Part 6, 8, and 19.
      a.  Could a short-term "bridge" be awarded through a competitive action or a sole-source action via mandatory sources, established by FAR Part 8?
      b.  Could a short-term "bridge" be awarded competitively or sole-source via authority stated in FAR Part 19?
      c.  Or, is a sole-source follow-on to the existing contract pursuant to authorities stated in FAR Part 6 the only feasible solution?  The market research accomplished in steps "a" and "b" above should be included in the documentation (the J&A) to defend the decision to use this acquisition strategy.
     
    2.  In pursuing solutions in paragraph 1, using the same contract type as the original contract may be logical; however, using a different contract type is not prohibited by regulation.  Based upon FAR Part 16, selecting contract type is based upon several elements, including the level of risk shared between the Government and the Contractor.  If this "bridge" contract involves essentially the same level of cost, schedule and performance risk as the original contract, then using the same contract type as the original contract makes good sense.  However, if after performing the basic contract and all the options (as stated in this scenario), there may be less risk now than when the original contract was awarded.  In addition, for a short-term "bridge" contract, like the one in your scenario, the administrative burden of an Award Fee contract may not be in the Government's best interest.  These reasons may warrant a change in contract type for the bridge.
     
    3.  Recommend seeking specific counsel from your attorney for information based upon case law and legal precedent which indicates the same contract type is required.  A brief review of decisions by the GAO and US Court of Federal Claims provided a few cases which have some similarities to your scenario (USCOFC number 08-708C, Access Systems vs US,  October 10, 2008;  USCOFC No 11-217C, IDEA vs US, January 29, 2013;  and GAO Decision No B-406171 (and B-406323), February 27, 2012).  These decisions provide insight regarding bridge contracts:  they must be for the same type of work as the original contract, must not provide more service than the status quo, and must not prejudice the award of the follow-on contract.  However, these decisions are silent regarding the requirement for a bridge contract to match the contract type of the original contract or the follow-on.  Perhaps your attorney advisor can evaluate these decisions with respect to this scenario.
     
    4.  Taken together, without compelling legal evidence against doing so, an evaluation of risk and administrative burden may drive a need for a bridge to be a different contract type than the original contract.  Per FAR 1.102(d), if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, pursuing a different contract type is a permissible exercise of the Contracting Officer's authority.

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