The program manager has requested a task order extension to the delivery date to allow for the burns. If extended, the task order will cross three fiscal years (FY15 - 17) and terminate in Dec 16. The Government will not benefit from this task order unless the debris from the habitat management can be disposed of by controlled burns (non-severability). Can I legally extend the task order until Dec 16 using the clause FAR 52.249-8 Default?
To answer your question the answer is, no you may not use FAR 52.249-8 to extend the task order. This clause is to terminate a contract, not extend a contract. I found other information you might find helpful for your situation.
FMR Vol 3, Chapter 8 (8-13)
2. Non-Severable Services. A service contract is non-severable or entire if performance of the service results in a single or unified outcome, product, or report that cannot be subdivided. The performance period of a fixed price non-severable services contract may cross fiscal years, but must be fully funded in the initial fiscal year unless contract funding requirements exists set forth at DFARS 232.703-1(1)(ii). Unless the period of performance is entirely within a single fiscal year or within the charged account’s period of availability if funded using a multiyear appropriation, non-severable services contracts may not be funded on an incremental basis unless Congress has authorized incremental funding. These type contracts must be funded entirely with appropriations available for new obligations at the time the contract is awarded or options exercised.
B-37929 Nov 17, 1943, 23 Comp Gen 370
…the general rule is that the fiscal year appropriation current at the time contract is made is chargeable with payments under the contract, although performance thereunder, may extend into the ensuing fiscal year.
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You might find this earlier Ask a Professor Question helpful.
Non-severable services constitute a specific, entire job or single undertaking with a defined end-product that cannot feasibly be subdivided for separate performance. Non-severable services must be financed entirely out of the appropriation current at the time of award, even though performance may extend into future fiscal years. Contracts for non-severable services cannot be incrementally funded.
There are two key decisions that support this:
GAO Decision B-317139, Matter of Financial Crimes Enforcement Network (June 1, 2009) - http://www.gao.gov/decisions/appro/317139.pdf
71 Comp. Gen. 428 (Jun 8, 1992) - http://www.gao.gov/products/456287#mt=e-report
Both decisions clearly state that failure to fully fund non-severable service contracts at the time of award is a bona fide needs violation:
“Failure to obligate the estimated cost (or ceiling) of a nonseverable cost-reimbursement contract at the time of award violated the bona fide needs rule.” (GAO Decision B-317139, page 1)
“The general rule is that a nonseverable service is considered a bona fide need at the time the agency orders the service and, therefore, should be charged to an appropriation current at the time the agency enters into the contract…Whether a contract is for severable or nonseverable services affects how the agency may fund the contract; severable services contracts may be incrementally funded, while nonseverable services contracts must be fully funded at the time of the award of the contract.” (GAO Decision B-317139 (2009), page 4)
“Multi-year procurement Contracts that cannot be separated for performance by fiscal year may not be funded on an incremental basis without statutory authority… the cost of such nonseverable contracts must be recorded as an obligation and fully covered by currently available funds at the time of contract award.” (71 Comp Gen 428 (1992))