Could this clause be add to the first option because it is bilateral or do I just leave it out because it was not in the original solicitation nor the contract?
It is very rare that a clause is added to the FAR or DFARS with the requirement that contracting officers must open up their contracts, add the clause and negotiate for consideration. FAR 1.108 states that “contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration." If you are getting a bilateral signature just because the option notification date has been missed and you are not changing anything else in the option agreement, then you do not have to open the option for new clauses and consideration. If you are opening the option for new work, using a J&A, your contract has expired, or you are doing anything else that would indicate that this is a new or different effort, then you must add the current clauses. Please check with your lawyer for additional advice.
1.108 – FAR Conventions.
(d) Application of FAR changes to solicitations and contracts. Unless otherwise specified –
(1) FAR changes apply to solicitations issued on or after the effective date of the change;
(2) Contracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and
(3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.
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