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  • Question

    There are several questions. 1. Would the remaining value of the contract ($280M) be the value of a J&A? 2. Does a change in the performance period denote a new requirement if just extending the ordering period? 3. Is there a statute or FAR reference to support the decision either way or is this one of those times where a contracting officer's business judgments and legal opinion are used? 4. What would be the cleanest way to execute this type of action?


    Answer

    This is an interesting question and we can provide you with some information that may be helpful.  Please note, however, that here at Ask A Professor, we cannot advise you directly on your specific situation.  While we can’t advise on a specific contract we are happy to discuss the topic both for you and for any readers we view this topic on our web site.
     
    You’ve described an IDIQ contact with a base year and four option years.  You would like to change the ordering period and you’re wondering whether you need a J&A to do this. 
     
    First, it is important to distinguish between option periods and ordering periods.  Options to extend the term of a contract and are exercisable (unilaterally) pursuant to FAR Clause 52.217-9.  Prior to exercising, the contracting officer must make the determinations required in FAR 17.207 including the continued need for the requirement, whether the option is the most advantageous method of fulfilling the need considering price and other factors, whether the option was previously synopsized, and several other considerations.  It is well established by case law that options must be exercised exactly as written.  If an option to extend the term of the contract is not exercised, the contract expires.
     
    Ordering periods are different from option periods.  IDIQ contracts will include FAR Clause 52.216-18 (Oct. 1995).  Paragraph (a) of the clause provides a fill-in to establish the period during which task orders or delivery orders may be issued.  (“Such orders may be issued from ______ through _______.” )
     
    Returning to your question, you desire to change the ordering period, which would be a modification to this clause 52.216-18. However, you characterize your situation as modifying the ordering period INSTEAD of the option period.  This is a false premise.  You can only modify a contract that is in existence.  Each year the continued existence of your contract depends on whether you have exercised the option that year.  If you don’t exercise the option, the contract expires.  Your contact cannot be extended, nor can it be revived by modifying the dates in FAR Clause 52.216-18
     
    Assuming your contract continues in existence through the timely exercise of the option to extend term, the next question is whether  modifying  the contract, specifically modifying  Clause 52.216-18, will address your situation.  It seems that you might be considering extending the ordering period beyond the time that the option has extended the contract time.  This cannot be done.  The period for issuing orders cannot be longer than the period of performance of the contract (although it can be shorter).
     
    You also had a question about whether you should do a J&A.   A Justification and Approval (J&A) is required under FAR 6.303 for sole source acquisitions.  This includes modifications outside the scope of a contract.  Whether your proposed change is in or out of scope is a question of fact that we can’t advise you on from afar.  You’ve stated that you have your attorney involved, which is a good thing.  (There seems to be an inconsistency in your background statement.  You indicate that you are considering a J&A for an in-scope change.  Perhaps that was a mistyping, because an in-scope change does not need a J&A.) 
     
    Your background statement refers to a “new contract,” so it may be that you are not modifying the existing contract, but are creating a new contract  with a different ordering period in Clause 52.216-18.  Again if this new contract is sole-source it a J&A must document the reason for proceeding without full and open competition. 
     
    A complicating issue is that you’ve mentioned this was a multiple award IDIQ, which indicates that there was competition, which in turn raises the question of why you would be doing a sole source (with a J&A) if you have previously had competition.

    You’ve also described the dollar value of the contract, but it isn’t clear whether this was the dollar value of the base year or the base year plus all options.  So, it isn’t clear which year’s money you are trying to address.  And it seems as though you may bewanting to extend the ordering period so that you can use money you haven’t spent at the rate you previously expected.  This raises some fiscal law issues that you may want to look at if you haven’t previously considered them.  The details can get complicated, but you must assure that you are using the right year’s funds when you are exercising options or doing a modification. 
     

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