Can consideration that is on the same task order/same program cross option years to be performed? Would there be an issue with bonafide need in the process of crossing option years?
Bona Fide Needs rule mandates that a fiscal year appropriation can only be obligated to meet a legitimate need of the fiscal year for which the appropriation was made. One could argue that if consideration was negotiated for some failure of the contractor that there is no appropriation specifically associated with the effort and therefore one could have greater flexibility with the performance period. To use that argument, it's best to consult with your program attorney. Whether the consideration can/should cross option years is a concern as well. If some consideration has been negotiation that would only be performed if the future option were exercised, the Government runs the risk of losing that consideration if the option is not exercised. A less risky alternative is to ensure the consideration is performed under a task order that is already in place or issued under the current base or option period. An order funded with an annual appropriation may cross the fiscal year if the period of performance is not greater than 12 months and the services are considered nonseverable. In order to fully utilize the consideration, it should be tied to the current contract performance period.
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