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52.217-8 Can Government Contracting Office de-scope the contract for the "-8" extension?

Started by CSAW · Jul 29, 2024 · 7 replies

  1. C

    CSAW

    Jul 29, 2024 · 1y ago

    Original post

    Hello,

    I am working for a government contractor and have been in contract administration for a few years now but have never come across this particular issue. I am posting in the beginner's forum as I have not posted before. I hope this is the correct place to pose my question(s).

    We are currently in the last option period of a firm fixed price DoD contract performing services. The Contracting Officer is talking about utilizing the "-8" extension for 1 or more months of a potential 6 month extension. The clause is in the contract, however, it was not priced during the solicitation process. Prevailing labor rates are not applicable to this contract as it is overseas.

    Contract has several CLINS spanning different categories of work. Contracting Officer has asked us if it was possible to obtain pricing on different aspects of the potential extension elements. It is possible that not all services currently being performed will be required during the extension so they may have to descope what is currently being performed. The format provided to us does not include all the CLINs currently on the contract. Additionally, one of the CLINs shows a drastic reduction of the equipment to be serviced under said CLIN, which we originally attributed to the equipment' maintenance cycles but we now believe it is more likely that the type of equipment being serviced is potentially being moved to another contract altogether. We have asked the contracting office for a revised statement of work, particularly an updated list of the equipment they still want to get serviced during the extension. In one of the communications with the contracting office it was stated that it is essentially for market research on behalf of the end user.

    I went back through our records to see what happened with the contract on the previous go-around. Back then the "-8" extension was exercised unilaterally, at first for 4 months and then the for the remaining 2 months before award was made. Back then there were no changes made to the CLINs or the pricing thereof.

    Not sure if these facts matter: Contracting officer has changed 3 times since the last contract. This current contract option expires in 3 months. The new contract solicitation has yet to be issued.

    My questions: 1) Can the contracting office descope the work as part of the "-8" extension? 2) If "Yes", can they do this "a la carte" (i.e. can they pick and choose what workload out of each CLIN they want to keep or do the CLINs need to stay intact?

    Any help is greatly appreciated.

  2. D

    Don Mansfield

    Jul 29, 2024 · 1y ago

    1. Are you asking if the contracting officer can change the work unilaterally?

    2. If yes, does the contract have a Changes Clause? 

    3. If yes, which Changes clause?

  3. C

    CSAW

    Jul 29, 2024 · 1y ago

    Hi and thank you for responding.

    1. No. I wanted to know if the contracting officer can de-scope the work to be performed in the -8 extension.

    I believe that the -8 extension can be unilateral as long as there be no changes. That is the only exposure I had to the -8 extension (the previous contract I referenced). Please do correct me if I am wrong. And my apologies if my question was not clear.

    1. I don't see the one I think would be the one you may be inquiring about 52.243-1 Changes - Fixed Price in the award document or any of the modifications, I only see 252.243-7001 Pricing of Contract Modifications incorporated by reference. On the mods they often reference 52.212-4 Contract Terms and Conditions - Commerical Products and Commercial Services, Changes when there has been an increase in the number of after hours or other units due to increased activity.
  4. C

    C Culham

    Jul 30, 2024 · 1y ago

    I was waiting for Don to reply.   My apologies to him for stepping in, otherwise....

    When the government has an option, priced or not, they are to evaluate the exercise of the option.  See FAR 17.207.  In your case you state an unpriced option so in my thinking the agency will have justify the exercise of the option based on other than full and open competition.   This may be the reason they stated "market research" as you note.   I hope this makes sense.   This then leads to my specific responses to your questions -

    CSAW said:

    Can the contracting office descope the work as part of the "-8" extension?

    An option must be exercised based on its expressed terms in the contract.  The clause says "any" rather than "all" services if the exact FAR clause was used.   So I think that in your terminology the needs in the option could be descoped.  But again as I have already noted the governments ability would be based on not only the -8 clause but documenting their authoirty to use other than full and open competition to do so.

    CSAW said:

    2) If "Yes", can they do this "a la carte" (i.e. can they pick and choose what workload out of each CLIN they want to keep or do the CLINs need to stay intact?

    Yes (see my response to the first question).

  5. V

    Vern Edwards

    Jul 30, 2024 · 1y ago

    Options must be exercised "as is." I think a CO can exercise the -8 option and simultaneously change or partially terminate the contract only with the contractor's agreement. If the contractor does not agree, then the CO cannot exercise the option except "as is". That is simple contract law.

    But I think the CO could exercise the option and then issue a deductive change order or partially terminate the contract. I don't see why that would breach the contract.

    But whether either action could withstand a bid protest from an interested party is another matter entirely. That is not a matter of simple contract law, but competition regulations, which can be weird.

  6. R

    Retreadfed

    Jul 30, 2024 · 1y ago

    CSAW said:

    On the mods they often reference 52.212-4 Contract Terms and Conditions - Commerical Products and Commercial Services, Changes

    Is the contract for commercial products/services?  If so, is FAR 52.212-4 in the contract?

  7. C

    CSAW

    Aug 7, 2024 · 1y ago

    Hi everyone. Wanted to say Thank you for your responses. I meant to get back in here sooner but things at work have been crazy. 

    Yes, 52.212-4 is in the contract.

  8. C

    C Culham

    Aug 7, 2024 · 1y ago

    CSAW said:

    Yes, 52.212-4 is in the contract.

    Going back to your original question number 1, and with the additional information, I offer the following.

    On 7/29/2024 at 11:47 AM, CSAW said:

    1) Can the contracting office descope the work as part of the "-8" extension?

    I beleive responses to this question are still applicable which is "No" as the government only has the ability to "unilaterally" exercise an option "as is".   With 52.212-4 in the contract it is like a double down on the government lacking the unilateral ability because if they tried to do so as a "change" paragraph (c) of 52.212-4 requires agreement (written) of the parties.

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