Exercising maintenance options after warranty period

Castillo6C said:

I am questioning whether or not this is a violation of the Competition in Contracting Act because we are essentially exercising off of an expired contract,

Why do you call it an "expired contract"? Because there's a break in work between POPs?

Yes, is that not considered an expired contract?

Not according to @Vern Edwards, who would distinguish between the expiration of the contract and the expiration of the POP. See, for example, this thread:

Your situation is different from what is described in that thread, however, in that you're not suggesting the Government has broken any terms. In your scenario, the terms will simply specify a one-year break in service. I know of nothing that would prevent the Government from doing this.

On 6/5/2018 at 8:08 AM, Castillo6C said:

My office received an equipment/installation requirement and the customer wants to add maintenance option CLIN's to the contract after delivery/installation of the items. The concern is the equipment will come with a one year commercial warranty. In an effort to not pay for maintenance on top of the warranty an idea was presented to have a one year gap in between CLIN 0001's period of performance and Option 1001 to allow for the one year warranty to be utilized. Example: CLIN 0001: 01Aug18-30Sep18. CLIN 1001(Maintenance): 01Oct19-30Sep20. Is this possible? I am questioning whether or not this is a violation of the Competition in Contracting Act because we are essentially exercising off of an expired contract, however since this method was part of the solicitation and the interested parties knew our intent and the period's of performance, could we proceed with this plan?

Is the customer saying that the equipment doesn’t require any “maintenance” during the one year warranty period?

What is the definition of “maintenance” for this item? Is it Preventive maintenance or is it fixing something that is broken ( “repair” )? 

is it - “come fix the equipment if it is broken” ?

One must clearly define what you  mean 

Edit:  The OP  appears to be referring to a new acquisition, not an additional requirement to an existing or completed contract - I think.  Although it doesn’t matter, I’m wondering what the govt team thinks the difference is between a one year “ commercial warranty” and “maintenance” or by what the team means by “maintenance “.  A contractor wouldn’t normally provide routine “maintenance” as part of a warranty.  A warranty generally covers faulty materials or installation. 

If this is part of an upcoming contract, then the follow-on maintenance requirement won’t  be an extension of an “expired contract”. It will be competed. But maybe I’m misreading the initial post.

joel hoffman said:

Is the customer saying that the equipment doesn’t require any “maintenance” during the one year warranty period?

What is the definition of “maintenance” for this item? Is it Preventive maintenance or is it fixing something that is broken ( “repair” )? 

 is it - “come fix the equipment if it is broken” ?

One must clearly define what you  mean 

Edit:  By the way, the OP  appears to be referring to a new acquisition, not an additional requirement to an existing or completed contract - I think.  Although it doesn’t matter, I’m wondering what the govt team thinks the difference is between a one year warranty and “maintenance” or by what the team means by “maintenance “.  A contractor wouldn’t normally provide routine “maintenance” as part of a warranty.  A warranty generally covers faulty materials or installation. 

 If this is part of a new contract, then the follow-on maintenance requirement wouldn’t be an extension of an “expired contract” and would have been competed.

Joel - Let's say "warranty" and "maintenance" involve the same work under OP's scenario. Do you see an inherent issue with the Government including a year-long break in performance?

FrankJon said:

Joel - Let's say "warranty" and "maintenance" involve the same work under OP's scenario. Do you see an inherent issue with the Government including a year-long break in performance?

Not necessarily. The funding must be correctly applied and bonafide needs sorted out, though.

If the “warranty and [the] maintenance involve the same work”, where is a “break in performance”? Supposedly, the contractor would be “performing” a some identifiable service in addition to warranting the materials and original installation during the warranty period. I am assuming that there would be no separate, additional  payment during that period.

The follow on “maintenance” work would have to be funded from appropriate appropriations, perhaps using options, if it will involve future funding sources.

joel hoffman said:

If the “warranty and [the] maintenance involve the same work”, where is a “break in performance”?

In this scenario the warranty would be "not separately priced." So it seems that OP's concern is that there wouldn't be a POP associated with it, hence the "break."

Ah but you can identify the period of performance of the warranty, especially if it includes some kind of maintenance services.

@joel hoffman I see what you're saying, and I agree with your initial point that a warranty and maintenance should be two different things.

Perhaps this discussion will help to clarify OP's thinking. If it helps to alleviate concern in OP's office, perhaps the "warranty" can be specified in the contract with a "NSP" CLIN and POP.