1. The DFARS and FAR references quoted below in pertinent part are applicable to this response.
Open full Question Details
DFARS 217.204 – Contracts
(e)(i) Notwithstanding FAR 17.204(e), the ordering period of a task order or delivery order contract (including a contract for information technology) awarded by DoD pursuant to 10 U.S.C. 2304a— (C) Shall not exceed 10 years unless the head of the agency determines in writing that exceptional circumstances require a longer ordering period.
FAR 2.101 -- Definitions
“Outlying areas” means—
(1) Commonwealths. (i) Puerto Rico. (ii) The Northern Mariana Islands;
(2) Territories. (i) American Samoa. (ii) Guam. (iii) U.S. Virgin Islands; and
(3) Minor outlying islands. (i) Baker Island. (ii) Howland Island. (iii) Jarvis Island. (iv) Johnston Atoll. (v) Kingman Reef. (vi) Midway Islands. (vii) Navassa Island. (viii) Palmyra Atoll. (ix) Wake Atoll.
“United States” when used in a geographic sense, means the 50 States and the District of Columbia, except as follows:
(1) For use in Subpart 3.10, se the definition at 3.1001.
(2) For use in Subpart 22.8, see the definition at 22.801.
(3) For use in Subpart 22.10, see the definition at 22.1001.
(4) For use in Subpart 22.13, see the definition at 22.1301.
(5) For use in Subpart 22.16, see the definition at 22.1601.
(6) For use in Subpart 22.18, see the definition at 2.1801.
(7) For use in Part 23, see the definition at 23.001.
(8) For use in Part 25, see the definition at 25.003.
(9) For use in Part 27, see the definition at 27.001.
(10) For use in Subpart 47.4, see the definition at 47.401.
FAR Subpart 6.3 -- Other Than Full and Open Competition
FAR 6.301 – Policy
(d) When not providing for full and open competition, the Contracting Officer shall solicit offers from as many potential sources as is practicable under the circumstances.
FAR 6.302 -- Circumstances Permitting Other Than Full and Open Competition
FAR 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements
(2) When the supplies or services required by the agency are available from only one responsible source, or, for DOD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements, full and open competition need not be provided for.
(iii) For DOD, NASA, and the Coast Guard, services may be deemed to be available only from the original source in the case of follow-on contracts for the continued provision of highly specialized services when it is likely that award to any other source would result in-- (B) Unacceptable delays in fulfilling the agency’s requirements. (See 10 U.S.C. 2304(d)(1)(B).)
FAR 6.302-2 -- Unusual and Compelling Urgency
(a) Authority. (2) When the agency’s need for the supplies or services 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 bids or proposals, full and open competition need not be provided for.
(d) Period of Performance. (1) The total period of performance of a contract awarded using this authority—
(i) May not exceed the time necessary—
(A) To meet the unusual and compelling requirements of the work to be performed under the contract; and
(B) For the agency to enter into another contract for the required goods and services through the use of competitive procedures; and
(ii) May not exceed one year unless the head of the agency entering into the contract determines that exceptional circumstances apply.
FAR Subpart 22.4 -- Labor Standards for Contracts Involving Construction
FAR 22.403-1 -- Davis-Bacon Act
The Davis-Bacon Act (40 U.S.C. 3141 et seq.) provides that contracts in excess of $2,000 to which the United States or the District of Columbia is a party for construction, alteration, or repair (including painting and decorating) of public buildings or public works within the United States, shall contain a clause (see 52.222-6) that no laborer or mechanic employed directly upon the site of the work shall receive less than the prevailing wage rates as determined by the Secretary of Labor.
2. In response to your first question, the requester can use DFARS 217.204(e)(i)(C), as a pertinent reference because this regulation permits a 10-year performance period for DoD task order contracts. However, pursuant to FAR 6.302, this J&A must cite the appropriate exception for using other than full and open competition in order to extend the performance periods of both of your current contracts. Based on the information provided in this inquiry, a justification under either FAR 6.302-1 or FAR 6.302-2 would probably work in this case. However, this acquisition situation should be analyzed in more detail to determine which exception is the best fit.
3. In regards to the second question, whenever the Davis-Bacon Act (DBA) is applicable to the work being performed, then pursuant to FAR 22.404-2, the requester would be correct in assuming that the Contracting Officer must incorporate the most current DOL DBA wage determinations into any contract extension. However, as stated in FAR 22.403-1, the provisions of the Davis-Bacon Act, including DOL wage determinations, only apply within the United States. Kwajalein Island (i.e., the southernmost and largest island in the Kwajalein Atoll) is not part of the United States nor is even one of Outlying Areas of the U.S. as those terms are defined in FAR 2.101, but is part of the Republic of the Marshall Islands (RMI). The U.S. actually leases the land from RMI land owners for the conduct of its operations. Furthermore, our review of the Department of Labor (DOL) DBA Wage Determination site disclosed no DBA WDs for the Marshall Islands. Based on the above, we do not believe that the provisions Davis-Bacon Act apply to any construction work being performed on Kwajalein Island, and therefore recommend that the requester inquire as to why any DBA WDs would actually be applicable to this work.