Can a BOA be extended beyond five years? If so, what regulation would allow this extension? Once the BOA has expired, can option periods on the task order be exercised at the task order level?
Although DFARS 216.703 says that “the period during which orders may be placed against a basic ordering agreement may not exceed 5 years”, I believe that you may continue to exercise the option years on the existing task order, even though the BOA has expired. This is because the task order is a contract in accordance with FAR 16.703 (c) (1) (iv) and the definition of a “contract” found in FAR Part 2. As long as you followed the FAR requirement at FAR 16.703 (c) (1) (iv) and specified “the point at which each order becomes a binding contract”, your task order is a contract. You are exercising the option years against your contract, not your BOA. Of course, please check with your own agencies’ contracting policy and legal opinion. See the references below.
216.703 Basic ordering agreements.
(c) Limitations. The period during which orders may be placed against a basic ordering agreement may not exceed 5 years.
(d) Orders. Follow the procedures at PGI 216.703(d) for issuing orders under basic ordering agreements.
FAR Part 2 Definitions:“Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C.6301, et seq. For discussion of various types of contracts, see Part 16.
FAR 16.703 (c) Limitations. A basic ordering agreement shall not state or imply any agreement by the Government to place future contracts or orders with the contractor or be used in any manner to restrict competition.
(1) Each basic ordering agreement shall --
(i) Describe the method for determining prices to be paid to the contractor for the supplies or services;
(ii) Include delivery terms and conditions or specify how they will be determined;
(iii) List one or more Government activities authorized to issue orders under the agreement;
(iv) Specify the point at which each order becomes a binding contract (e.g., issuance of the order, acceptance of the order in a specified manner, or failure to reject the order within a specified number of days);
(v) Provide that failure to reach agreement on price for any order issued before its price is established (see paragraph (d)(3) of this section) is a dispute under the Disputes clause included in the basic ordering agreement; and
(vi) If fast payment procedures will apply to orders, include the special data required by 13.403.
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