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    We have a J&A approved sole source C-type contract set to expire end of current FY. Follow-on contract was competitively awarded to different contractor as a D-type, Task Order contract. Customer is concerned that certain projects on current contract (each on their own CLIN) may not be complete prior to end of existing contract. Customer wants to extend PoP for certain project CLINs without an approved J&A or updating existing J&A. Customer doesn't want entire C-type contract extended, only certain project CLINs. Is this appropriate? Current approved J&A stipulates current C-type contract expires end of current FY. Contract contains 52.217-8, Option to Extend Services, however, our organization requires approved J&A to use clause if pricing was not originally obtained from contractor for 6-mo extension. When contract was awarded (15 yrs ago), pricing was not obtained for 6-mo extension; therefore, I have advised customer that J&A would need to be accomplished; however, customer argues that since they do not want to extend entire contract, only certain "project" CLINs to allow time for their completion, a J&A would not be required.


    Answer

    The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance. 
     
    FAR 52.217-8 allows the Government to require "continued performance of any services with the limits and at the rates specified in the contract".  If this clause was included in a solicitation that was originally synopsized within an competitive environment and in accordance with FAR Part 5, a Justification & Approval should not be required simply to leverage it.  This is because the requirements of the Competition in Contracting Act (CICA) and FAR Part 6 have already been pacified.  The current rates would be carried over for a period up to six months, with adjustments to those rates only allowed due to revisions to the labor rates provided by the Secretary of Labor - the Government is not required to get separate pricing up front for this potential 6-month term.  The Contractor accepted these terms upon signature of the contract, and other contractors that didn't get the award were aware of it. 
     
    However, in a sole-source environment that you explain, where your organization has stipulated that the future use of FAR 52.217-8 requires a separate Justification & Approval, the argument of, "I only want to extend CLINs, not the contract" falls short, as you cannot have CLINs without the contractual instrument.  Additionally, the intent behind FAR 52.217-8 is found at FAR 37.111.  We see here that the purpose for it is to ensure that any delayed awards of contracts for service requirements don't require Contracting Officers to negotiate short extensions to existing (services) contracts.  This is not the landscape you present, as you currently have an Indefinite Delivery contract (that was competitively awarded)  already postured to transition to.  So, to answer your "appropriate" question, the answer would be "no". 
     
    After additional correspondence with you, current projects initiated upon your "C" contract will be complete...it's other projects that your customer wants to now ignite that would not be complete by the end of the contract.  If these are legitimate (Bonafide) requirements, then there are avenues where transition plans may serve as an effective conduit in ensuring work is not dropped during the changeover from the "C" to the "D"...but these would have had to have been considered early on in the planning stage, as evaluation factors and relative weighting should reflect the importance of transition of existing projects.  If rationale for igniting projects is to ensure the current contractor performs them, then that is a different conversation.  If the customer was involved in establishing evaluation factors and participating in the source selection, then their objectives should be met at the standards the Government needs with the new contract.  If they weren't involved, then that's a lesson learned for the contracting activity. 
     

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