The 8 month contract was issued using FY15 O&MN funding. They want to issue a two month extension by adding a CLIN using FY16 funding. Is this legal? They were not planning on using this current contract to issue the new contract after the two month extension. They plan to issue a completely different contract with FY16 funding for 12 months.
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Noted. You have checked your contract for the clause at FAR 52.217-8 Option to Extend Services. Not included. Had it been included, it specifically allows a six month extension. Situation solved.
Now, what to do to continue the delivery of the services? You might also check for the FAR 52.237-3 Continuity of Services clause which may provide some help. The contract ends after 8 months so check with your legal office on whether you may invoke these or any other contract clauses at this point. If none of the clauses are present in your contract or you cannot apply them because the contract has expired, you need to prepare the required justification for a new contract using the appropriate authority and procedures for award under FAR Part 6.
It would seem that your extension exceeds the scope of the contract in place. In essence a new requirement.
The Competition in Contracting Act, 10 U.S.C. § 2304(c)(2), permits an agency to use other than competitive procedures in acquiring goods or services where the agency’s requirement is of such an unusual and compelling urgency that the government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits proposals. Although the Competition in Contracting Act requires that agencies solicit offers from as many potential sources as is practicable when using the unusual and compelling urgency exception to limit competition, 10 U.S.C. § 2304(e), an agency nonetheless may limit a procurement to the only firm it reasonably believes can properly perform the work in the time available. Camden Shipping Corp., B-406171, B-406323, Feb. 27, 2012, 2012 CPD ¶ 76 at 6; McGregor Mfg. Corp., B‑285341, Aug. 18, 2000, 2000 CPD ¶ 151 at 6.
When using noncompetitive procedures pursuant to 10 U.S.C. § 2304(c)(2), such as here, agencies are required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. See 10 U.S.C. §§ 2304(f)(1)(A), (b); FAR §§ 6.302-2(c)(1), (d)(3), 6.303, 6.304. Noncompetitive procedures may not justify a noncompetitive award on the basis of urgency where the agency’s requirements have become urgent as a result of a lack of advanced planning. 10 U.S.C. § 2304(f)(4)(A); FAR § 6.301(c)(1); eAlliant, LLC, B-407332.4, B‑407332.7, Dec. 23, 2014, 2015 CPD ¶ 58 at 5. While an agency may not justify a noncompetitive award on the basis of urgency where the agency’s requirements have become urgent as a result of a lack of advanced planning, such planning need not be entirely error-free or successful. eAlliant, LLC, supra; Pegasus Global Strategic Solutions, LLC, B‑400422.3, Mar. 24, 2009, 2009 CPD ¶ 73 at 9.
It would seem that your extension exceeds the scope of the contract in place. In essence a new requirement
If there was not time for full and open competition for the interim services until the follow-on contract is executed, in accordance with FAR Subpart 6.3, you can consider limited competition among qualified sources, from market survey, that may be interested in performing the services.
The extension you are seeking to accomplish is referred to as a bridge contract.
The FAR does not contain the term bridge contract at all. The term is used descriptively to construct a contract or contract action that will bridge the time between the end of current contract and delivery order that you state expired after 8 months and when you anticipate being ready to issue a new contract two months from that date.
Funding dependent on resulting course of action taken. Approved J&A?